Bakewell v The Queen - [2008] NTSC 51

Bakewell v The Queen [2008] NTSC 51

PARTIES: BAKEWELL, Jonathan Peter
v
THE QUEEN
TITLE OF COURT: FULL COURT OF THE
SUPREME COURT OF THE
NORTHERN TERRITORY
JURISDICTION: FULL COURT OF THE
SUPREME COURT OF THE
NORTHERN TERRITORY
EXERCISING TERRITORY
JURISDICTION
FILE NO: 96 of 2008 (20821205)
DELIVERED: 11 DECEMBER 2008
HEARING DATES: 29 and 30 OCTOBER 2008
JUDGMENT OF: MARTIN (BR) CJ, THOMAS & RILEY JJ
CATCHWORDS:
CRIMINAL LAW -- REFERENCE OF QUESTIONS OF LAW --
VALIDITY OF AMENDMENTS TO ACT -- CONSTITUTIONAL LAW
Whether amendments to the Sentencing (Crime of Murder) and Parole
Reform Act 2003 (NT) (‘the Act’) apply to the appellant – whether
amendments to the Act infringe the principle in Kable v Director of
Public Prosecutions (NSW) (1996) 189 CLR 51 (‘Kable’) – whether
amendments to the Act constitute an unwarranted interference with the
judicial powers of the Supreme Court of the Northern Territory –
discussion of the ‘institutional integrity’ of State Supreme Courts –
amendments valid
CRIMINAL LAW -- REFERENCE OF QUESTIONS OF LAW --
WHETHER PROCEEDINGS SHOULD BE PERMANENTLY STAYED
Whether the proceedings are oppressive – whether the proceedings are scandalous, frivolous or vexatious – whether the proceedings constitute and abuse of process of the Supreme Court of the Northern Territory –
no abuse
CRIMINAL LAW -- REFERENCE OF QUESTIONS OF LAW -- OTHER
Whether Directors’ application constituted a contempt of court – whether
s 19 of the amended Act applies to appellant – whether appellant’s non-
parole period should be revoked and replaced – no contempt
Commonwealth Constitution, s 71; Community Protection Act 1994
(NSW), s 3(1); Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld),
s 8; Sentencing (Crime of Murder) and Parole Reform Act 2003 (NT),
s 18 and s 19; Sentencing (Crime of Murder) and Parole Reform
Amendment Act 2008 (NT); Sentencing Act 1995 (NT), s 53A; Sentencing
Act 1989 (NSW); Supreme Court Act (NT), s 21(1).
Baker v The Queen (2004) 223 CLR 513; Burnett v Director of Public
Prosecutions (2007) 21 NTLR 39; Fardon v Attorney-General (Qld)
(2004) 223 CLR 576; Forge v Australian Securities and Investments
Commission (2006) 228 CLR 45; Gypsy Jokers Motorcycle Club Inc v
Commissioner of Police (2007) 33 WAR 245; Nicholas v The Queen
(1998) 193 CLR 173; North Australian Aboriginal Legal Aid Service Inc
v Bradley (2004) 218 CLR 146, followed.
Attorney General v World Best Holdings Ltd (2005) 63 NSWLR 557; Bakewell v The Queen [2008] NTCCA 3; Jago v The District Court of New South Wales (1989) 168 CLR 23; Leeth v The Commonwealth
(1991) 174 CLR 455; Liyanage v The Queen [1967] AC 259; R v Elliott
(2006) 68 NSWLR 1; R v Leach (2004) 14 NTLR 44, referred.
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, distinguished.
REPRESENTATION:
Counsel:

Plaintiff: M Abbott QC and I Read
Defendant: M Grant QC and S Brownhill
Solicitors:

Plaintiff: NT Legal Aid Commission
Defendant: Office of the Director of Public
Prosecutions

Judgment category classification: A
Judgment ID Number: Mar0811
Number of pages: 74
IN THE FULL COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Bakewell v The Queen [2008] NTSC 51
No. 96 of 2008 (20821205)
BETWEEN:
JONATHAN PETER BAKEWELL
Plaintiff

AND:
THE QUEEN
Defendant

CORAM: MARTIN (BR) CJ, THOMAS AND RILEY JJ
REASONS FOR JUDGMENT
(Delivered 11 December 2008)

Martin (BR) CJ:
Introduction

This is a reference of questions of law arising out of the operation of the
Sentencing (Crime of Murder) and Parole Reform Act 2003 (“the Act”) as
amended by the Sentencing (Crime of Murder) and Parole Reform
Amendment Act 2008 (“the 2008 amendment”). In issue is the validity of
the 2008 amendment and the application of the principle emanating from
Kable v Director of Public Prosecutions (NSW)[1] that State and Territory
legislatures cannot confer upon a State or Territory court a function which
substantially undermines the institutional integrity of the court.
Agreed Statement of Facts
The following facts were agreed for the purposes of the reference:

“1. On 23 February 1988, Jonathan Peter Bakewell (‘Bakewell’) broke into
premises with the intention of assaulting Anne Marie Culleton and
forcibly having sexual intercourse with her. During the course of the
assault, Bakewell applied pressure to the victim’s windpipe using first
his hand and then a ligature made from sheet. After the assault had
concluded, Bakewell observed that the victim was no longer breathing,
removed the ligature, and made an unsuccessful attempt to resuscitate
her. He then attempted to remove any evidence of his presence at the
premises and left. He was subsequently arrested and charged.

2.

On 10 May 1989, Bakewell pleaded guilty to the charges of unlawful assault with carnal knowledge, unlawful entry and stealing. He pleaded not guilty to the charge of murder.

3.

On 17 May 1989, Bakewell was found guilty of murder following tr ial by jury.
4. On 26 May 1989, Bakewell was sentenced to life imprisonment for the
murder, 10 years’ imprisonment for the assault, 4 years’ impr isonment
for the unlawful entry, and 1 year’s imprisonment for the stealing. The
sentences were ordered to be served concurrently and deemed to have
commenced on 27 February 1988.
5. On 11 February 2004, the Sentencing (Crime of Murder) and Parole
Reform Act 2003 (NT) (‘the Act’) commenced operation.

6.

The Act amended s 164 of the Criminal Code , inserted a new s 53A into the Sentencing Act , and introduced transitional provisions dealing with any prisoner who, at the date of commencement of the Act, was serving a sentence of imprisonment for life for the crime of murder.
7. By operation of s 18 of the Act, Bakewell’s sentence for the crime o f
murder was taken to include a non-parole period of 20 years.

8.

On 15 April 2005, Bakewell was transferred to South Australia pursuant to the Prisoners (Interstate Transfer) Act (NT).
9. On 25 June 2007, the Director of Public Prosecutions (‘the Director’)
made application to the Supreme Court under subs 19(1) of the Act,
seeking a non-parole period of 25 years because the murder was attended
by sexual conduct which fell within subs 19(3)(b) of the Act.

10.

On 16 October 2007, Southwood J revoked the 20 year non-parole period set by s 18 of the Act and ordered a non-parole period of 25 years commencing on 27 February 1988.
11. On 7 March 2008, the Court of Criminal Appeal set aside the orders
made on 16 October 2007 and dismissed the Director’ s application.

12.

On 20 March 2008, the Director filed an application for special leave to appeal to the High Court from the decision of the Court of Criminal Appeal. The application is to be determined on the papers at the High

Court’s convenience .[2]
13. On 15 May 2008, the Sentencing (Crime of Murder) and Parole Reform
Amendment Act 2008 (‘the Amending Act’) commenced operation. It
amended subs 19(3) of the Act and inserted new subsections 19(6) to
19(10) into the Act.

14.

It was an object of the Amending Act to ensure that a further application could be made pursuant to subs 19 of the Act in relation to Bakewell.
15. At the time the Amending Act commenced, there were:

(a) no prisoners other than Bakewell to whom subs 19(9) of the Act
could apply, since Bakewell’s was the only application under s 19
of the Act which had been dismissed; and

(b) five prisoners other than Bakewell to whom subs 19(3) of the Act had application and for whom an application under s 19 had not yet been brought because the time to do so prescribed by subs 19(2)(a) of the Act had not passed.
16. On 26 May 2008, the Director made application to the Supreme Court under subss 19(1) and 19(9) of the Act (as amended), seeking a non- parole period of 25 years because the murder was attended by sexual
conduct which fell within subs 19(3)(b) of the Act (‘the application’).
The application proceedings were numbered 8804836.
17. The act or omission which caused the victim’s death was part of a course of conduct by Bakewell that included conduct before the victim’s death

that would have constituted a sexual offence against the victim, within s
19(3)(b) of the Act.
18. On 1 August 2008, Bakewell filed:

(a)

a summons in proceedings 8804836 making application for a stay of the proceedings on the basis that the application is scandalous, vexatious or frivolous and/or it is an abuse of the process of the
Court;

(b) an originating motion seeking declarations that: (i) subss 3(7) and 3(9) of the Amending Act are invalid; (ii) the application constitutes a contempt of the Supreme Court; and (iii) that the Amending Act cannot apply retrospectively to the respondent, and also seeking a permanent stay of proceeding 8804836 on the basis that the proceedings are oppressive, vexatious or frivolous and/or constitute an abuse of the process of the Court. The proceedings commenced by this originating motion were numbered 96 of 2008.
19. On 18 August 2008, it was ordered that the proceedings numbered
8804836 and numbered 96 of 2008 be heard together.”

Questions of Law

The questions of law referred for determination by the Full Court on the
basis of the agreed facts are as follows:

“1. Is subs 19(3), subs 19(7) and/or subs 19(9) of the Sentencing (Crime of
Murder) and Parole Reform Act 2003 (NT) (as amended) (‘the Act’)
invalid in its application to Bakewell because:

(a)

it infringes the principle in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; or

(b)

it otherwise constitutes an unwarranted interference with the judicial power of the Supreme Court of the Northern Territory?
2. Does the Director’s application made under subs 19(9) of the Act on 26
May 2008 (‘application’) constitute a contempt of the Supreme Court of
the Northern Territory?

3.

Should the proceedings commenced by the application be permanently stayed because they:

(a) are oppressive?
(b) are scandalous, frivolous or vexatious?

(c)

constitute an abuse of process of the Supreme Court of the Northern Territory?
4. Does s 19 of the Act (as amended) apply to Bakewell?
5. Should Bakewell’s non-parole period of 20 years set by s 18 of the Act
(as amended) be revoked and replaced with a non-parole period of 25
years?”

History and Legislative Scheme

The respondent was sentenced to life imprisonment for the crime of murder
in May 1989. At that time there was no provision for the fixing of a non-
parole period in respect of a sentence of life imprisonment. Until 2004, the
only prospect of release for a person in the position of the appellant was the
exercise of Executive clemency.
The Act came into operation on 11 February 2004. Section 53A was
introduced into the Sentencing Act requiring that for a single crime of
murder, not accompanied by circumstances specified in s 53A(3)
(“circumstances of aggravation”), the Court must fix “a standard non-parole
period of 20 years”. Provision is made for the fixing of a shorter non-parole
period in “exceptional circumstances” and for the fixing of a longer non-
parole period or the refusal to fix a non-parole period if prescribed
conditions are fulfilled.
If an offender is being sentenced for two or more crimes of murder, or if any
of the circumstances of aggravation specified in s 53A(3) exist, s 53A(1)(b)

of the Sentencing Act directs the Court to fix a non-parole period of at least
25 years. The Court may either fix a period longer than 25 years or refuse
to fix a non-parole period, but if an aggravating circumstance exists there is
no power to fix a period less than 25 years.

The Act contained transitional provisions dealing with prisoners in the
position of the appellant who, at the time the 2004 amendment came into
operation, were serving sentences of life imprisonment without non-parole
periods.
First, s 18 directs that subject to other provisions, a life sentence for a single
crime of murder is taken to include a non-parole period of 20 years. If the
prisoner is serving life sentences for two or more crimes of murder, each of
the sentences is taken to include a non-parole period of 25 years. Such non-
parole periods are deemed to have commenced on the date on which the
sentence of life imprisonment commenced.
The respondent was sentenced to life imprisonment for a single crime of
murder. By the operation of s 18 of the Act, on the commencement of that
Act the appellant’s life sentence was taken to include a non-parole period of
20 years commencing 27 February 1988.
In their original form the transitional provisions also allowed for the
revocation of periods automatically fixed by s 18. While a prisoner such as
the appellant, is not able to apply for the fixing of a period different from
the period automatically fixed by s 18, the Director of Public Prosecutions
(“the Director”) was permitted by s 19 to apply for an order revoking the
period fixed by s 18 and an order fixing a longer period or refusing to fix a
non-parole period. Section 19(2) required that an application by the
Director be made not earlier than 12 months before the first 20 years of the
prisoner’s sentence is due to expire. Whether an application was made was
entirely a matter for the Director in the exercise of an unfettered discretion .[3]
Section 19 of the Act, as it commenced operation in 2004, was as follows:

“19 DPP may apply for longer or no non-parole period

(1) The Supreme Court may, on the application of the
Director of Public Prosecutions –

(a) revoke the non-parole period fixed by section 18 in respect of the prisoner and do one of the following:

(i) fix a longer non-parole period in accordance with subsection (3) or (4);
(ii) refuse to fix a non-parole period in accordance with subsection (5); or
(b) dismiss the application.
(2) The Director of Public Prosecutions must make the

application –

(a) not earlier than 12 months before the first 20 years of the prisoner's sentence is due to expire; or
(b) if, at the commencement of this Act, that period has
expired – within 6 months after that commencement.
(3) Subject to subsections (4) and (5), the Supreme Court

must fix a non-parole period of 25 years if any of the following
circumstances apply in relation to the crime of murder for which the
prisoner is imprisoned:

(a) the victim's occupation was police officer, emergency services worker, correctional services officer, judicial officer, health professional, teacher, community worker
or other occupation involving the performance of a
public function or the provision of a community service
and the act or omission that caused the victim's death
occurred while the victim was carrying out the duties of
his or her occupation or for a reason otherwise connected
with his or her occupation;
(b) the act or omission that caused the victim's death was part of a course of conduct by the prisoner that included conduct, either before or after the victim's death, that would have constituted a sexual offence against the victim;
(c) the victim was under 18 years of age at the time of the act or omission that caused the victim's death;
(d) at the time the prisoner was convicted of the offence, the prisoner had one or more previous convictions for the crime of murder or manslaughter.
(4) The Supreme Court may fix a non-parole period that is

longer than a non-parole period referred to in section 18 or
subsection (3) if satisfied that, because of any objective or subjective
factors affecting the relative seriousness of the offence, a longer
non-parole period is warranted.

(5) The Supreme Court may refuse to fix a non-parole period

if satisfied the level of culpability in the commission of the offence
is so extreme the community interest in retribution, punishment,
protection and deterrence can only be met if the offender is
imprisoned for the term of his or her natural life without the
possibility of release on parole.”

The circumstances set out in s 19(3) are identical to those aggravating
circumstances specified in s 53A(3) of the Sentencing Act which applies to
prisoners sentenced after the commencement of the Act in 2004 and requires
that the court fix a non-parole period of at least 25 years. If the respondent
had been sentenced for the crime of murder after the commencement of the
Act, because his act that caused death was accompanied by conduct
amounting to a sexual offence against the victim, the court would have been
obliged to fix a non-parole period of at least 25 years. However, as I have
said, because the respondent was sentenced before the commencement of the
Act, by the operation of s 18, his sentence was taken to include a non-parole
period of 20 years.
The respondent’s 20 year non-parole period, fixed in 2004 by the operation
of s 18, expired in February 2008. By application dated 25 June 2007, the
Director applied for an order revoking that 20 year non-parole period and
sought an order fixing a non-parole period of 25 years. The application was
based upon s 19(3)(b) because the respondent’s act that caused the victim’s
death was part of a course of conduct that constituted a sexual offence
against the victim.
The Judge hearing the application was of the view that had he been
unconstrained by legislative direction, by reason of the remarkable progress
towards rehabilitation made by the respondent during his 20 year period of
incarceration, his Honour would not have revoked the period of 20 years

fixed automatically by s 18. However, his Honour found that he had no
choice in the matter because he was required by s 19(3) to revoke the non-
parole period of 20 years and to fix a parole of not less than 25 years.
Accordingly, his Honour revoked the period of 20 years and fixed a
replacement period of 25 years.

The respondent appealed against the revocation and the fixing of a period of
25 years. The Court of Criminal Appeal determined that the discretion
conferred in s 19(1)(b) to dismiss the Director’s application was unfettered
and not constrained by s 19(3). Nor was it constrained by proof of the
matters set out in ss 19(4) or (5). In those circumstances the appeal was
allowed and the order of the Judge was set aside. The Court dismissed the
Director’s application leaving the 20 year non-parole period fixed by s 18 in
place.[4]
In summary, the reasoning of the Court of Criminal Appeal was as follows:

 Although prisoners sentenced before the commencement of the Act in
2004 were not in entirely the same position as those sentenced after that
Act commenced, the net effect of the transitional provisions was to
“create a degree of equality between those who were serving sentences
before the commencement of the Act and those who are sentenced after
that commencement”.[5]

 Section 19(1) provided that on an application by the Director, the
Supreme Court “may” revoke the non-parole period fixed by s 18. The
conferral of that discretion was not expressed to be subject to any other
provision of the Act. Nor was the power expressed as a power that
“may” be exercised upon satisfaction that particular cri teria had been
established.
 The scheme created by the transitional provisions for the revocation of
non-parole periods fixed by s 18 was not an entirely mandatory scheme.
The legislature had conferred an unfettered discretion upon the Director
to determine whether to make an application for the revocation of a
period fixed by s 18. If the Court did not retain a discretion to refuse
such an application, in a practical sense the discretion whether to revoke
a period fixed by s 18 would rest with a statutory office holder.
 The context of the transitional provisions was a penal statute in which
those provisions had application only after a prisoner had served at least
20 years imprisonment. It would not be surprising if the legislature had
in mind that rehabilitation may have occurred in that 20 year period to
the extent that the interests of the community would be best served by
declining to revoke the 20 year period fixed by s 18.

Legislative Response

The reasons for decision in Bakewell were delivered on 7 March 2008. It is
common ground that the 2008 amendment was a direct legislative response
to that decision.
In s 19(1), the introductory words, “The Supreme Court may …” are now
prefaced by the words, “Subject to this section”. The aggravating
circumstances in which a non-parole period of at least 25 years must be
fixed are now identified as “the prescribed circumstances of aggravation”.
The other relevant provisions of the 2008 amendment are as follows:

“(6) The Director of Public Prosecutions:

(a)
must make an application under this section in the case of the prescribed circumstances of aggravation can be established; and

(b)

may make an application under this section in the case of any other prisoner to whom this Division applies.

(7) If any of the prescribed circumstances of aggravation is
established on an application under this section:

(a) the Supreme Court’s power to dismiss the application
under subsection (1)(b) is excluded; and

(b)

the Court must exercise its power under subsection (1)(a) to revoke the non-parole period fixed by section 18; and
(c) the Court must exercise one of the following powers:

(i)

fix a non-parole period of 25 years in accordance with subsection (3);

(ii)

fix a longer non-parole period in accordance with subsection (4);

(iii)

refuse to fix a non-parole period in accordance with subsection (5).

(8) However, if no prescribed circumstance of aggravation is
established on an application under this section, the Supreme
Court may (as formerly):

(a) dismiss the application under subsection (1)(b); or

(b)

exercise its power under subsection (1)(a) to revoke the non-parole period fixed by section 18 and:
(i) fix a longer non-parole period in accordance with subsection (4); or
(ii) refuse to fix a non-parole period in accordance with subsection (5).

(9) If, before the commencement of this subsection, an application
under this section had been dismissed in a case in which a
prescribed circumstance of aggravation was, or could have
been, established, a further application may be made under this
section within 6 months after that commencement.
(10) The further application may be made either by the Director of
Public Prosecutions or by the Attorney-General and, if made
by the Attorney-General, references in this Division to the
Director of Public Prosecutions will, in relation to that
application, be read as references to the Attorney-General.”

The effect of the 2008 amendment may be summarised as follows:

 The Director no longer possesses an unfettered discretion as to whether
to apply for the revocation of a 20 year non-parole period fixed by s 18.
If the Director is of the “opinion” that one or more of the prescribed
circumstances of aggravation “can” be established, the Director “must”
make an application for the revocation of a 20 year non-parole period
fixed by s 18.

 In any other case, the Director “may” make an application for revocation.
 Upon an application by the Director, the court must determine whether
any of the prescribed circumstances of aggravation are “established”.
The discretion with respect to that decision is unfettered.
 If the court determines that a prescribed circumstance of aggravation is
established, the court’s power to dismiss the Director’s application is
“excluded”.
 If the court determines that a prescribed circumstance of aggravation is
established, the court “must” exercise its power to revoke the 20 year
non-parole period fixed by s 18.
 If the court determines that a prescribed circumstance of aggravation is
established, the court “must” fix a non-parole period of 25 years in
accordance with s 19(3) or fix a longer non-parole period in accordance
with s 19(4) or refuse to fix a non-parole period in accordance with
s 19(5).
 If the court determines that a prescribed circumstance of aggravation has
not been established, the court may dismiss the application or exercise its
power to revoke the non-parole period fixed by s 18 and either fix a
longer non-parole period or refuse to fix a non-parole period.

Leaving aside s 19(9) and (10) which enable the Director to make a further
application with respect to the respondent’s non-parole period, there are four
other prisoners potentially affected by the 2008 amendment. Their 20 year
non-parole periods fixed by s 18, expire in 2012, 2014 and 2018.
As to the effect of the 2008 amendment with respect to the processes of the
court, first the court must determine whether any of the prescribed
circumstances of aggravation have been “established”. No constraint is
placed upon the decision making process which is to be carried out in the
normal way. The burden of establishing the existence of a prescribed
circumstance of aggravation rests upon the Director.
If the court determines that no prescribed circumstance of aggravation has
been established, the court may dismiss the application or exercise other
powers with respect to fixing a longer non-parole period or declining to fix a
non-parole period. Again, this determination is to be made in the normal
way and the processes and discretion of the court in this regard are
unconstrained.
It is only if the court determines, in the exercise of its unfettered discretion,

that a circumstance of aggravation has been established that the court is
directed as to the consequences. First, the power to dismiss the application
is excluded and the Court is directed to revoke the non-parole period fixed
by s 18. Secondly, the Court is directed that it must exercise one of the
powers found in s 19(3), (4) or (5). In effect, the Court is directed to fix a
minimum non-parole period of 25 years or a longer non-parole period or to
refuse to fix a non-parole period. It is these directives that the respondent
contends substantially undermine the institutional integrity of the Court. In
my opinion, an examination of the relevant principles discloses that in the
context of the legislative scheme in its entirety, these particular directives
do not have that effect.
Principles – Institutional Integrity

It is common ground that the Supreme Court of the Northern Territory “may
exercise the judicial power of the Commonwealth pursuant to investment by
laws made by the Parliament”.[6] It is also common ground that in those
circumstances the decision of the High Court in Kable applies in the
Northern Territory.
In Burnett v Director of Public Prosecutions,[7] I reviewed a number of
authorities concerned with the principle emanating from Kable. It is
unnecessary to repeat that discussion. From those authorities, the following
propositions of relevance emerge:

 “… The principle for which [Kable] stands as authority is that, since the
Constitution established an integrated Australian court system, and
contemplates the exercise of federal jurisdiction by State Supreme
Courts, State legislation which purports to confer upon such a court a
function which substantially impairs its insti tutional integrity, and
which is therefore incompatible with its role as a repository of federal
jurisdiction, is invalid”.[8]
 Federal jurisdiction may only be invested in a “‘court’ as that word is to
be understood in the Constitution …”.[9]
 “Because Ch III requires that there be a body fitting the description ‘the
Supreme Court of a State’, it is beyond the legislative power of a State
so to alter the constitution or character of its Supreme Court that it
ceases to meet the constitutional description. One operation of that
limitation on State legislative power was identified in Kable. The
legislation under consideration in Kable was found to be repugnant to,
or incompatible with, ‘that institutional integrity of the State courts
which bespeaks their constitutionally mandated position in the
Australian legal system’”.[10]
 The principle is “one which hinges upon maintenance of the defining
characteristics of a ‘court’, or in cases concerning a Supreme Court, the
defining characteristics of a State Supreme Court. It is to those
characteristics that the reference to ‘institutional integrity’ alludes.
That is, if the institutional integrity of a court is distorted, it is because
the body no longer exhibits in some relevant respect those defining
characteristics which mark a court apart from other decision-making
bodies”.[11]
 “[W]hen reference is made to the institutional ‘integrity’ of a court, the
allusion is to what The Oxford English Dictionary describes as ‘[t]he
condition of not being marred or violated; unimpaired or uncorrupted
condition; original perfect state; soundness’”.[12]
Kable

[27] As to “institutional characteristics” of significance, in Gypsy Jokers
Motorcycle Club Inc v Commissioner of Police,[13] Steytler P identified a
number of uncontroversial “pointers” to essential characteristics. In Burnett
I summarised his Honour’s observations as to those pointers in the following
terms:[14]

“ Although public confidence is not a separate consideration
sufficient in itself for the operation of the Kable principle, it is
a ‘basic quality’ of courts, citing Gleeson CJ in Baker:
[6] The strength of the [] principle lies in its person believes to exist in another. The most basic
constitutional legitimacy. It was not an invention of a
method by which judges may wash their hands of the
responsibility of applying laws of which they
disapprove. In some of the judgments in Kable,
references were made to public confidence in the courts.
Confidence is not something that exists in the abstract.
quality of courts in which the public should have
confidence is that they will administer justice according
to law. As Brennan CJ said in Nicholas v The Queen
(1988) 193 CLR 173 at 197 [37]:
It is the faithful adherence of the courts to the
laws enacted by the parliament, however
undesirable the courts may think them to be, which
is the guarantee of public confidence in the
integrity of the judicial process and the protection
of the courts’ repute as the administrator of
criminal justice. (My emphasis.)

 ‘… A Supreme Court will lack institutional integrity if it is, or
is perceived to be, not institutionally independent of the
legislative and executive government in the exercise of its
Federal jurisdiction … There are suggestions that a court will
not have the required degree of independence if it acts as a
mere instrument of government policy …’ (at [89]).
 ‘… Institutional impartiality, and the appearance of it, must not
be compromised …’ (at [90]).
 ‘… The appearance of institutional independence and
impartiality is no less important to the institutional integrity of
the court than the fact of its institutional independence and
impartiality. That, in turn, must be so because its absence will
result in a loss of public confidence in the court as an
institution, to the detriment of that institution and of the
community generally’ (at [94]).
 It is at least a material consideration to determine whether the
power conferred by the legislature is ‘antithetical to the
judicial process’ (at [92]).
 There are a number of ‘relevant incidents’ which are ordinarily
part of the judicial process such as ‘the fact of a public

hearing, application of rules of evidence, the existence of a discretion where appropriate; provisions with respect to the onus and standard of proof; an obligation to afford natural

justice; an obligation to make proper disclosure; an obligation (and ability) to give reasons; and the existence of the right of
appeal’ (at [92]).”

Application of Principles

The respondent submitted that the “pith and substance” of the 2008
amendment “is a legislative plan ex post facto to secure a non-parole period
of 25 years and increase the punishment of one particular individual, viz the
respondent and other prisoners through the court with only the façade of a
judicial hearing thus interfering generally with the judicial power and the
integrity of the Supreme Court”. It was contended that the legislation is
impermissibly directed to the course of particular proceedings, namely, the
Court of Criminal Appeal decision with respect to the respondent’s 20 year
non-parole period and to a particular individual, namely, the respondent.
Leaving aside the power contained in s 19(9) to make a further application
with respect to the respondent’s 20 year non-parole period, in my opinion
the 2008 amendment does not infringe the Kable principle. First, the court
is required to determine whether the facts of the offender’s crime include a
prescribed circumstance of aggravation. An issue is joined before the court
to be determined by the court in an independent and impartial manner in
accordance with its ordinary processes. There is nothing in the conferral of
this power that could be seen as undermining the independence and
impartiality, or the appearance of the independence and impartiality, of the court. The conferral of this power does not undermine any of the essential
characteristics of the court.
It is only if the court finds certain facts proved that the court is directed to
revoke the 20 year non-parole period and to exercise its discretion as to the
fixing of a replacement non-parole period or refusing to fix a non-parole
period. In effect, once the existence of a prescribed circumstance of
aggravation is proved, a statutory minimum non-parole period of 25 years
must be imposed unless the court determines, in the exercise of its
independent discretion, to impose a longer period or to refuse to fix a non-
parole period. Again, there is nothing in this process which undermines the
independence and impartiality of the court or the appearance of its
independence and impartiality. The court determines the facts and, within
the constraint of the statutory minimum, exercises its independent
sentencing discretion according to its usual processes.
Whatever may be said about the operation of s 19(9), the remaining
provisions of s 19 apply to all prisoners whose 20 year non-parole periods
have yet to expire. In respect of those prisoners, if the Director applies for a
revocation of a non-parole period fixed by s 18, there is no “façade of a
judicial hearing”. Nor can it be said that the independence and impartiality
of the Court, or the appearance of independence and impartiality, is
comprised in the conduct of the hearing and determination of such
applications.
Second Application – Section 19(9)
As to the operation of s 19(9), the proposition that s 19(9) is aimed solely at
the respondent is well founded and accepted by the Crown. Section 19(9)
provides that if, before the commencement of the 2008 amendment, an
application under s 19 has been dismissed “in a case in which a prescribed
circumstance of aggravation was, or could have been, established …”, a
further application may be made by the Director for the revocation of the 20
year period fixed by s 18 and the fixing of a longer period or an order
refusing to fix a non-parole period. It is common ground that the only
application previously dismissed, and to which subs (9) is capable of
referring, is the application with respect to the respondent’s non-parole
period that was dismissed by the Court of Criminal Appeal. It is also
common ground that s 19(9) was inserted for the sole purpose of enabling a
second application to be made for an order revoking the respondent’s 20
year non-parole period.
Although it was conceded by the Crown that the only person to whom
s 19(9) could apply is the respondent, by way of emphasising that the
respondent is the sole target of subs (9), counsel for the respondent took the
Court to press releases issued by the Attorney-General on 8 March 2008 and
30 April 2008, together with the Second Reading Speech of the Attorney-
General when introducing the 2008 amendment on 30 April 2008.

[34] Misconceptions apparent in these public statements should be corrected.
First, to the extent that these statements are capable of conveying the impression that the decision of the Court of Criminal Appeal in Bakewell
might apply to prisoners sentenced after the commencement of the Act in
2004, that impression is incorrect. The decision in Bakewell was strictly
confined to those prisoners who were serving sentences of life imprisonment

without a non-parole period at the time the Act commenced in 2004.
Secondly, the statement in a media release on 8 March 2008 that the Court
“found that a serious convicted rapist is eligible to apply for early parole” is
incorrect. The Court did not make such a finding. Section 18 having
automatically fixed a non-parole period of 20 years, the Court found that the
Judge had a discretion to refuse an application to revoke that period of 20
years. As the Court interpreted the law prior to the 2008 amendment, no
question of “early parole” was involved. Nor, as stated by the Attorney-
General, was there any question of “offenders going free before they legally
should”. The decision as to the law to be applied to the circumstances of the
respondent was for the Court, not the Attorney-General, and statements
conveying the impression that the decision was contrary to law were
singularly unhelpful.

In the Second Reading Speech, after speaking of the general provisions of
the amending Act, the Attorney-General plainly stated that subs (9) was
aimed solely at the respondent. The relevant section of those remarks was
as follows:
“I turn now to the retrospective component contained in the bill. As
a result of the Supreme Court’s recent decision, one transitional life
prisoner who has committed the offence of murder with an as precluding it from having any discretion to impose less than the 25-year minimum term for murders where aggravating circumstances were present.
aggravating circumstance has received a minimum non-parole period
of 20 years imprisonment. All other transitional life prisoners who
have been found to have committed murder with circumstances of
aggravation have all received sentences of at least 25 years
imprisonment or higher. One has been declined a parole period.
If the government does not act, those prisoners who have been given provides specific powers for a further application to be made for the
a 25 year minimum term may justifiably feel a sense of grievance
that they were not given the same consideration as in the recent case
of Jonathon Bakewell. However, those other prisoners were dealt
with in the manner which was always intended by parliament and
Mr Bakewell was not. This is why government must act swiftly.
DPP or me to apply [for] a longer parole period …”.
In the course of the Second Reading Speech, the Attorney-General stated
that until the case of the respondent, “the court has always interpreted the
act as precluding it from having any discretion to impose less than the 25-
year minimum term for murderers where aggravating circumstances were
present”. In respect of prisoners in the position of the respondent who were
serving sentences of life imprisonment without non-parole periods at the
time that the Act commenced operation in 2004, that statement is not
correct. Similarly, it is not correct to say that others in the position of the
respondent “were not given the same consideration” as the respondent.
Prior to the decision in Bakewell, the issue as to whether the Court
possessed a discretion to decline an application for the revocation of a non-
parole period automatically fixed by s 18 had not arisen for determination.

[37] The public statements by the Attorney-General confirm a legislative policy
that the decision in Bakewell should be overridden. Further, in the context
of the decisions of the Judge at first instance and the Court of Criminal
Appeal, the statements by the Attorney-General leave no room for doubt that
it was the legislative plan to inflict additional punishment upon the
respondent through the operation of the 2008 amendment by requiring him
to serve a further period of five years before being eligible for parole . It
was not in dispute that the South Australian parole authority intended to
release the respondent on parole at the expiration of the 20 year period. The
legislature was aware of the impending release and of the views of the Judge
at first instance and Court of Criminal Appeal that , by reason of the
respondent’s remarkable progress by way of rehabilitation, the respondent
should be eligible to apply for parole at the expiration of 20 years. In the
debate following the Second Reading Speech, the Attorney-General
explicitly referred to the question of rehabilitation in the following terms:
“I understand that [the respondent] has been a model prisoner and he
has rehabilitated himself.”

Against the background that s 19(9) is a provision with punitive effect
aimed solely at the respondent, the operation of s 19(9) falls to be
considered not only in the context of the total legislative scheme, but also in
the context of the previous decision dismissing the application to extend the

respondent’s 20 year non-parole period. The factual context is critical to the
respondent’s contention that a hearing of the Director’s second application
will amount to “a façade of a judicial hearing”.

First, the application to revoke the respondent’s 20 year period having been
refused prior to the commencement of the 2008 amendment, and a
prescribed circumstance of aggravation having been established in the
course of that application, in substance s 19(6) requires the Director to make
a second application with respect to the respondent’s 20 year period, and
only the respondent’s 20 year period. Knowing the background and that the
existence of a prescribed circumstance of aggravation had been established,
in substance the legislature has directed the Director to make a second
application.
Secondly, in reality the result of the hearing of the second application has
been predetermined because the prescribed circumstance of aggravation
accompanying the crime of murder committed by the respondent has already
been established on two occasions. At trial, in relation to the events during
which the respondent committed the crime of murder, the respondent was
also convicted by the jury of unlawfully assaulting the deceased with intent
to have carnal knowledge of her and thereby having carnal knowledge of
her. A sentence of 10 years imprisonment was imposed for that crime.
Next, before the Judge at first instance who revoked the 20 year non-parole
period and fixed a non-parole period of 25 years, and before the Court of
Criminal Appeal on appeal from that decision, the respondent conceded that
“the act or omission that caused the victim’s death was part of a course of
conduct by the [respondent] that included conduct, either before or after the
victim’s death, that would have constituted a sexual offence against the
victim”. As the Judge at first instance found that he was obliged to fix a
period of at least 25 years, it is implicit in that finding that his Honour also
found that a prescribed circumstance of aggravation had been proven in the
proceedings before his Honour. That finding was not set aside by the Court
of Criminal Appeal.
In these circumstances, the respondent submitted that although, in theory, it
is open to the respondent on the second application to contest the Crown
allegation as to the existence of a prescribed circumstance of aggravation
and, in theory, the court would be required to determine whether a
prescribed circumstance of aggravation is established, in reality as that
question has already been determined at trial and by the Judge at first
instance on the first application, the court will be a mere instrument of the
legislative plan to ensure that the respondent is imprisoned for an additional
five years before being eligible for parole. The hearing will amount to no
more than “a façade of a judicial hearing”.
When the practical effect of s 19(9) is expressed in these terms, at first
blush it might appear that the institutional integrity of the court will be
impaired because, on a second application, the court will not be seen to act
as an independent and impartial decision maker. However, upon closer
examination it can be seen that the court retains its essential institutional
characteristics.

[43] First, although s 19(9) targets the respondent only, the predominant purpose
of the 2008 amendment was to ensure equal treatment of offenders sentenced
before and after the commencement of the Act in 2004 whose crimes of
murder were accompanied by a prescribed circumstance of aggravation. An
offender sentenced after the commencement of the Act for a crime of murder
accompanied by a prescribed circumstance of aggravation must receive a
non-parole period of at least 25 years. The 2008 amendment ensures
equality by requiring that those transitional prisoners whose crimes of
murder were accompanied by a prescribed circumstance of aggravation must
also receive a minimum non-parole period of 25 years. This result is
achieved by applying the same criteria to all prisoners, regardless of when
they are sentenced; by removing the discretion of the court to refuse to set
aside a 20 year non-parole period fixed by s 18 where the existence of a
prescribed circumstance of aggravation is proven; and by requiring that the
Court fix at least 25 years.

The predominant purpose of the legislation stands in stark contrast to the
legislation struck down by the High Court in Kable. As Gummow J pointed
out in Kable, the scheme into which the Court was drawn “as an essential
and determinative integer” was a scheme whereby, through order by the
Court, “an individual is incarcerated in a penal institution otherwise than for
a breach of the criminal law”.[15] Later in his reasons his Honour spoke of the
“extraordinary piece of legislation” being calculated to have the following
“deleterious effect”:[16]
“This is that the political and policy decisions to which the Act seeks
to give effect, involving the incarceration of a citizen by court order implements the will of the legislature. Thereby a perception is created which trenches upon the appearance of institutional
but not as punishment for a finding of criminal conduct, have been
ratified by the reputation and authority of the Australian judiciary.
impartiality …”.
In respect of all offenders to whom the 2008 amendment applies, including
the respondent, a non-parole period has been fixed as part of a sentence
imposed as punishment for proven criminal conduct. Although in specified
circumstances the court is directed to impose a non-parole period of not less
than 25 years, thereby giving effect to the legislative policy, the court is not
a mere instrument of the legislature. Before making the order the court must
determine, in the exercise of its independent and impartial judicial function,
whether a specified circumstance exists. This is no more or less than an
ordinary sentencing process following an adjudication of guilt in respect of
which the minimum and maximum penalties depend on the existence or
otherwise of circumstances identified in the relevant statutory provisions.
As to the respondent in particular, in respect of the non-parole period to be
served the legislature has not singled out the respondent and sought to treat
him differently from other offenders. The 2008 amendment treats the

respondent differently to the extent that it has the practical effect of
overriding a decision in favour of the respondent that placed the respondent
in a better position than other like offenders. The legislature has sought to
redress the imbalance between the respondent and other like prisoners by
creating a new sentencing regime and permitting the Director to make an
application under that regime. Further, under the new regime, the
legislature has provided for equality of treatment by directing that should
the Court be satisfied that the respondent’s crime of murder was
accompanied by a prescribed circumstance of aggravation, the minimum
period to be served by the respondent before being eligible for parole will be
no less than the minimum period that other transitional offenders in the
same circumstances have been, and will be required, to serve. That
minimum period is determined by reference to proven facts accompanying
the respondent’s crime of murder. Viewed in this way, the circumstances
are far removed from those of the legislation struck down in Kable.

Rather than view the application of the 2008 amendment as creating equality
of treatment in the manner I have explained, counsel for the respondent
sought to construct relevant “unfairness” to the respondent through the
operation of s 19. A judgment of the court having been given in favour of
the respondent, counsel contended that it was “unfair” to permit a second
application for the purpose of revisiting the same issue in circumstances
where the court would inevitably be required to override the previous
decision.
In the context of the criminal law and its emphasis upon fairness to accused
persons and offenders, and against the background of the respondent’s
remarkable progress by way of rehabilitation, this argument attracts some
sympathy. However, in itself, this element of “unfairness” cannot provide a
sound basis for a conclusion that the legislation substantially undermines the
institutional integrity of the court. Subject to constitutional limits,
Parliament has the power to pass laws which have “unfair” consequences for
individuals or sections of the community. This power includes altering
sentencing regimes in ways that produce adverse consequences for serving
prisoners that might reasonably be characterised as “unfair”. Subject to
maintaining institutional integrity, regardless of such “unfair” consequences,
the court is obliged to give effect to the legislative policy by faithfully
applying the law given to it. As Brennan CJ observed in Nicholas v The
Queen:[17]
“It is the faithful adherence of the courts to the laws enacted by the
Parliament, however undesirable the courts may think them to be, which is the guarantee of public confidence in the integrity of the
judicial process and the protection of the courts’ repute as the
administrator of criminal justice”.

[49] Legislative changes to sentencing regimes almost invariably affect the
sentences and legitimate expectations of serving prisoners, particularly long
serving prisoners, and often to the significant disadvantage of prisoners.
The circumstances in Baker v The Queen[18] provide a good example of such adverse consequences. Baker had been sentenced in 1974 to life
imprisonment for the crime of murder. At that time, the only prospect of
release was release on licence in the exercise of the Executive discretion. In
1989 that scheme was replaced by a system of parole, including transitional
provisions enabling a prisoner serving a life sentence to apply for the
determination of a minimum term (the equivalent of a non-parole period)
and an additional term during which the prisoner would be at liberty on
parole. The additional term was either a specified period or the remainder
of the offender’s natural life. An application by the appellant for the fix ing
of such terms was refused and in May 1994 an appeal against the refusal was
dismissed.

Under the 1989 legislation, the only criteria for eligibility to apply for the
fixing of minimum and additional terms was service of at least eight years of
the life sentence. In 1997 an amendment to the sentencing regime changed
the criteria to the significant disadvantage of Baker. As Baker had been the
subject of a non-release recommendation at the time sentence was imposed,
under the new regime he was not eligible to make an application until he had
served at least 20 years of the life sentence. Further, an additional criteria
was added, namely, that a person in the position of Baker was not eligible
for a determination of a minimum and additional term unless the Supreme
Court was satisfied that “special reasons” existed that justified the making
of such a determination.
Baker contended that the criteria of “special reasons” was devoid of content
and amounted to a legislative direction that such pr isoners were never to be
released. As a consequence any court proceedings would amount to a
charade. These contentions were rejected by the New South Wales Court of
Criminal Appeal and the High Court. In the course of his judgment,
Gleeson CJ noted that legislative changes to sentencing regimes usually
affect serving prisoners, particularly those serving long sentences. His
Honour observed that the New South Wales Parliament possessed the power
to make special provision for those prisoners who had been the subject of
non-release recommendations to the disadvantage of such prisoners.
In the case of the appellant, notwithstanding the existence of a decision in
his favour, Parliament possessed the power to alter the sentencing regime to
the disadvantage of the appellant by negating or overriding the effect of the
decision in his favour. As part of the alteration to the sentencing regime,
the legislative power extended to providing for a further application to be
made with respect to the respondent’s 20 year non -parole period, which
application is to be determined in accordance with the provisions of the new
regime. Subject to the principle emanating from Kable, it was within the
power of Parliament to involve the Court in the process of hearing and
determining the further application.
Upon the second application, there is no issue of estoppel. Regardless of the
forensic difficulties facing the respondent, there is no legal impediment

preventing the respondent from challenging the existence of a prescribed
circumstance of aggravation. The burden of establishing the existence of a
prescribed circumstance of aggravation rests upon the Director. If the
existence of such a circumstance is challenged, notwithstanding the previous
finding by the Judge at first instance, the court must determine whether a
prescribed circumstance of aggravation has been established by the
admissible evidence. The court will make the determination in the
independent and impartial exercise of the jurisdiction conferred upon it by
following its ordinary processes. As Riley J has pointed out, the hearing is
conducted in public in accordance with the ordinary judicial process and the
outcome is to be determined on the merits. These fundamental
characteristics of the Court and its processes will exist notwithstanding that
as a matter of practicality, it can reasonably be said that there are no
realistic prospects of a successful challenge by the respondent to the
existence of a prescribed circumstance of aggravation.

The challenge to the validity of the 2008 amendment based on Kable cannot
be sustained.
Other Grounds of Challenge
No question of double jeopardy or contempt of court is involved. I agree
with the reasons of Riley J for rejecting the respondent’s contentions that
the second application amounts to an abuse of process of the court and the
proceedings should be stayed permanently.
Answers

[56] I would answer the questions as follows:

1. No.
2. No.
3. No.
4. Yes.
5. This question should not be answered. A determination as to whether
the non-parole of 20 years fixed by s 18 should be revoked and
replaced with a non-parole period of 25 years should be determined
by a Judge hearing the second application.

Thomas J:

This matter involves a referral of Questions of Law for the Full Court
pursuant to s 21(1) of the Supreme Court Act.

[58] The Agreed Statement of Facts are as follows:

“1. On 23 February 1988, Jonathan Peter Bakewell (“Bakewell”)
broke into premises with the intention of assaulting Anne
Marie Culleton and forcibly having sexual intercourse with her.
During the course of the assault, Bakewell applied pressure to
the victim’s windpipe using first his hand and then a ligature

observed that the victim was no longer breathing, removed the
ligature, and made an unsuccessful attempt to resuscitate her.

made from sheet. After the assault had concluded, Bakewell the premises and left. He was subsequently arrested and charged.

2.

On 10 May 1989, Bakewell pleaded guilty to the charges of unlawful assault with carnal knowledge, unlawful entry and stealing. He pleaded not guilty to the charge of murder.

3.

On 17 May 1989, Bakewell was found guilty of murder following trial by jury.
4. On 26 May 1989, Bakewell was sentenced to life imprisonment
for the murder, 10 years’ imprisonment for the assault, 4 years’
imprisonment for the unlawful entry, and 1 year’s
imprisonment for the stealing. The sentences were ordered to
be served concurrently and deemed to have commenced on
27 February 1988.
5. On 11 February 2004, the Sentencing (Crime of Murder) and
Parole Reform Act 2003 (NT) (“the Act”) commenced
operation.

6.

The Act amended s 164 of the Criminal Code, inserted a new s 53A into the Sentencing Act, and introduced transitional provisions dealing with any prisoner who, at the date of commencement of the Act, was serving a sentence of imprisonment for life for the crime of murder.
7. By operation of s 18 of the Act, Bakewell’s sentence for the
crime of murder was taken to include a non-parole period of 20
years.

8.

On 15 April 2005, Bakewell was transferred to South Australia pursuant to the Prisoners (Interstate Transfer) Act (NT).
9. On 25 June 2007, the Director of Public Prosecutions (“the
Director”) made application to the Supreme Court under

subs 19(1) of the Act, seeking a non-parole period of 25 years because the murder was attended by sexual conduct which fell within subs 19(3)(b) of the Act.

10.

On 16 October 2007, Southwood J revoked the 20 year non- parole period set by s 18 of the Act and ordered a non-parole period of 25 years commencing on 27 February 1988.
11. On 7 March 2008, the Court of Criminal Appeal set aside the
orders made on 16 October 2007 and dismissed the Director’s
application.
12.

On 20 March 2008, the Director filed an application for special Court of Criminal Appeal. The application is to be determined
on the papers at the High Court’s convenience.
13. On 15 May 2008, the Sentencing (Crime of Murder) and
Parole Reform Amendment Act 2008 (“the Amending Act”)
commenced operation. It amended subs 19(3) of the Act and
inserted new subsections 19(6) to 19(10) into the Act.

14.

It was an object of the Amending Act to ensure that a further application could be made pursuant to subs 19 of the Act in relation to Bakewell.
15. At the time the Amending Act commenced, there were:

(a) no prisoners other than Bakewell to whom subs 19(9) of
the Act could apply, since Bakewell’s was the only application
under s 19 of the Act which had been dismissed; and

(b) five prisoners other than Bakewell to whom subs 19(3)
of the Act had application and for whom an application under
s 19 had not yet been brought because the time to do so
prescribed by subs 19(2)(a) of the Act had not passed.
16.
Court under subss 19(1) and 19(9) of the Act (as amended),

On 26 May 2008, the Director made application to the Supreme was attended by sexual conduct which fell within subs 19(3)(b)
of the Act (“the application”). The application proceedings
were numbered 8804836.
17. The act or omission which caused the victim’s death was part
of a course of conduct by Bakewell that included conduct
before the victim’s death that would have constituted a sexual
offence against the victim, within s 19(3)(b) of the Act.
18. On 1 August 2008, Bakewell filed:

(a) a summons in proceedings 8804836 making application
for a stay of the proceedings on the basis that the application is
scandalous, vexatious or frivolous and/or it is an abuse of the
process of the Court:

(b) an originating motion seeking declarations that: (i) subss
3(7) and 3(9) of the Amending Act are invalid; (ii) the
application constitutes a contempt of the Supreme Court; and
(iii) that the Amending Act cannot apply retrospectively to the
respondent, and also seeking a permanent stay of proceeding
8804836 on the basis that the proceedings are oppressive,
vexatious or frivolous and/or constitute an abuse of the process
of the Court. The proceedings commenced by this originating
motion were numbered 96 of 2008.
19. On 18 August 2008, it was ordered that the proceedings
numbered 8804836 and number 96 of 2008 be heard together.”

The Questions of Law for the consideration of the Full Court are:

“1. Is subs 19(3), subs 19(7) and/or subs 19(9) of the Sentencing
(Crime of Murder) and Parole Reform Act 2003 (NT) (as
amended) (“the Act”) invalid in its application to Bakewell
because:

(a) it infringes the principle in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; or
(b) it otherwise constitutes an unwarranted interference with the judicial power of the Supreme Court of the Northern Territory?
2. Does the Director’s application made under subs 19(9) of the
Act on 26 May 2008 (“application”) constitute a contempt of
the Supreme Court of the Northern Territory?
3. Should the proceedings commenced by the application be permanently stayed because they:

(a) are oppressive?
(b) are scandalous, frivolous or vexatious?
(c) constitute an abuse of process of the Supreme Court of the Northern Territory?
4. Does s 19 of the Act (as amended) apply to Bakewell?
5. Should Bakewell’s non-parole period of 20 years set by s 18 of
the Act (as amended) be revoked and replaced with a non-
parole period of 25 years?”

The Supreme Court of the Northern Territory is a court that exercises the

judicial power of the Commonwealth as one of the “other courts [the
Parliament] invests with federal jurisdiction” within s 71 of the Constitution
(North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218
CLR 146 at [28]-[29] per McHugh, Gummow, Kirby, Hayne, Callinan and
Heydon JJ).

The principle established in Kable v Director of Public Prosecutions (NSW)
(1996) 189 CLR 51 is applicable with respect to the validity of the
legislation. The principle expressed in Kable (supra) dealt with the validity
of the Community Protection Act 1994 (NSW). Section 3(1) of that
legislation expressed the object of the Act to be “to protect the community
by providing for the preventive detention …. of Gregory Wayne Kable.”
The legislation was directed at one person only.
A majority of the High Court found the Act to be invalid. I quote from the
decision of Toohey J at p 98 (citations omitted):
“The Act answers that aspect of incompatibility which was identified
in Grollo v Palmer as “the performance of non-judicial functions of
such a nature that public confidence in the integrity of the judiciary
as an institution ... is diminished”. The function exercised by the
Supreme Court under the Act offends Ch III which, as I said in powers, serving to protect not only the role of the independent judiciary but also the personal interests of litigants in having those interests determined by judges independent of the legislature and the executive. The function offends that aspect because it requires the Supreme Court to participate in the making of a preventive detention order where no breach of the criminal law is alleged and where there has been no determination of guilt. On that ground I would hold the
Act invalid. …”

[63] McHugh J at p 124:

“At the time of its enactment, ordinary reasonable members of the
public might reasonably have seen the Act as making the Supreme decision of the executive government that the appellant should be imprisoned without the benefit of the ordinary processes of law. Any person who reached that conclusion could justifiably draw the inference that the Supreme Court was an instrument of executive government policy. That being so, public confidence in the impartial administration of the judicial functions of the Supreme Court must inevitably be impaired. The Act therefore infringed Ch III of the
Constitution and was and is invalid.”

[64] The Minister’s Second Reading Speech with respect to the retrospective
component in the bill currently for consideration by this Court, shows a
fundamental misunderstanding of the existing legislation and its application.
The Minister said:
“I turn now to the retrospective component contained in the bill. As
a result of the Supreme Court’s recent decision, one transitional life
prisoner who committed the offence of murder with an aggravating
circumstance has received a minimum non-parole period of 20 years
imprisonment. All other transitional life prisoners who have been
found to have committed murders with circumstances of aggravation
have all received sentences of at least 25 years imprisonment or
higher. One has been declined a parole period. Until this most
recent case, the court has always interpreted the act as precluding it
from having any discretion to impose less than the 25 year minimum
term for murders where aggravating circumstances were present.
If government does not act, those prisoners who have been given a 25 provides specific powers for a further application to be made for the
year minimum term may justifiably feel a sense of grievance that
they were not given the same consideration as in the recent case of
Jonathon Bakewell. However, those other prisoners were dealt with
in the manner which was always intended by parliament and
Mr Bakewell was not. This is why government must act swiftly.
DPP or me to apply a longer parole period. ….”

It is not correct to say that “those prisoners who have been given a 25 year
minimum term may justifiably feel a sense of grievance that they were not
given the same consideration as in the recent case of Jonathon Bakewell”.
The legislation, as it existed, applied equally to all of those other prisoners.
The difference was the facts and circumstances in those cases did not
warrant a consideration of the exercise of the Court’s discretion to dismiss
the application for an increased non-parole period or to impose a non-parole
period of less than 25 years.
Section 19 of the Sentencing (Crime of Murder) and Parole Reform Act
2003 (NT), as amended, reads as follows:

“19. Application to extend or exclude non-parole period

(1) Subject to this section, the Supreme Court may, on the
application of the Director of Public Prosecutions –

(a) revoke the non-parole period fixed by section 18 in respect of the prisoner and do one of the following:
(i) fix a longer non-parole period in accordance with subsection (3) or (4);
(ii) refuse to fix a non-parole period in accordance with subsection (5); or

(b) dismiss the application.
(2) The Director of Public Prosecutions must make the

application –

(a) not earlier than 12 months before the first 20 years of the prisoner's sentence is due to expire; or
(b) if, at the commencement of this Act, that period has
expired – within 6 months after that commencement.
(3) Subject to subsections (4) and (5), the Supreme Court

must fix a non-parole period of 25 years if any of the following
circumstances (the prescribed circumstances of aggravation) apply
in relation to the crime of murder for which the prisoner is
imprisoned:

(a) the victim's occupation was police officer, emergency services worker, correctional services officer, judicial officer, health professional, teacher, community worker
or other occupation involving the performance of a
public function or the provision of a community service
and the act or omission that caused the victim's death
occurred while the victim was carrying out the duties of
his or her occupation or for a reason otherwise connected
with his or her occupation;
(b) the act or omission that caused the victim's death was part of a course of conduct by the prisoner that included conduct, either before or after the victim's death, that would have constituted a sexual offence against the victim;
(c) the victim was under 18 years of age at the time of the act or omission that caused the victim's death;
(d) at the time the prisoner was convicted of the offence, the prisoner had one or more previous convictions for the crime of murder or manslaughter.
(4) The Supreme Court may fix a non-parole period that is

longer than a non-parole period referred to in section 18 or
subsection (3) if satisfied that, because of any objective or subjective
factors affecting the relative seriousness of the offence, a longer non -
parole period is warranted.

(5) The Supreme Court may refuse to fix a non-parole period

if satisfied the level of culpability in the commission of the offence
is so extreme the community interest in retribution, punishment,
protection and deterrence can only be met if the offender is
imprisoned for the term of his or her natural life without the
possibility of release on parole.

(6) The Director of Public Prosecutions:
(a)

must make an application under this section in the case of the prescribed circumstances of aggravation can be established; and

(b)

may make an application under this section in the case of any other prisoner to whom this Division applies.
(7) If any of the prescribed circumstances of aggravation is

established on an application under this section:

(a) the Supreme Court's power to dismiss the application under subsection (1)(b) is excluded; and
(b) the Court must exercise its power under subsection (1)(a) to revoke the non-parole period fixed by section 18; and
(c) the Court must exercise one of the following powers:

(i) fix a non-parole period of 25 years in accordance with subsection (3);
(ii) fix a longer non-parole period in accordance with subsection (4);
(iii) refuse to fix a non-parole period in accordance with subsection (5).
(8) However, if no prescribed circumstance of aggravation is

established on an application under this section, the Supreme Court
may (as formerly):

(a) dismiss the application under subsection (1)(b); or
(b) exercise its power under subsection (1)(a) to revoke the non-parole period fixed by section 18 and:

(i) fix a longer non-parole period in accordance with subsection (4); or
(ii) refuse to fix a non-parole period in accordance with subsection (5).
(9) If, before the commencement of this subsection, an

application under this section had been dismissed in a case in which
a prescribed circumstance of aggravation was, or could have been,
established, a further application may be made under this section
within 6 months after that commencement.

(10) The further application may be made either by the

Director of Public Prosecutions or by the Attorney-General and, if
made by the Attorney-General, references in this Division to the
Director of Public Prosecutions will, in relation to that application,
be read as references to the Attorney-General.”

The old adage of “hard cases make bad law” is demonstrated in the
enactment of s 19(9). That amendment was clearly directed at Jonathan
Peter Bakewell who is the only prisoner in the Northern Territory to whom it
applies. The consequence of the Court of Criminal Appeal’s decision in the
matter of Jonathan Peter Bakewell does not mean that in future all persons
convicted of murder with the circumstances of aggravation outlined in
s 19(3), will receive a minimum non-parole period less than 25 years. It just
means the Court of Appeal has enunciated the principle that the Court had a
discretion in the cases to which the transitional provisions apply. I
understand there are in fact only another five prisoners to whom the
transitional provisions apply. Obviously each matter would have to be
considered on its own merits. The reality is, most prisoners convicted of
murder with aggravating circumstances would be unlikely to justify an
exercise of the Court’s discretion in their favour as occurred in the matter of
Jonathan Peter Bakewell.
Following the decision of the Court of Criminal Appeal, CA17 of 2007, the
Crown made an application for special leave to appeal to the High Court.
We were advised at the opening of these proceedings that the special leave
application to the High Court had been dismissed on the basis there was now
new legislation. This means the correctness or otherwise of the decision of
the Court of Criminal Appeal will never be tested.
There was no reason for an urgent retrospective amendment to the
legislation as stated in s 19(9) as amended by the Sentencing (Crime of Murder) and Parole Reform Amendment Act 8/2008, other than for the
purpose of targeting Jonathan Peter Bakewell.
I have come to the conclusion the enactment of s 19(9) of the Sentencing
(Crime of Murder) and Parole Reform Act 2003 (as amended by No. 8 of
2008) is an infringement of the principle established in Kable v Director of
Public Prosecutions (NSW) (1996) 189 CLR 51.
In Fardon v Attorney-General for the State of Queensland [2004] 223 CLR
575, the High Court found that s 8 of the Dangerous Prisoners (Sexual
Offenders) Act 2003 was valid as it did not impair the institutional integrity
of the Supreme Court of Queensland in such a fashion as to be incompatible
with the Court’s constitutional position as a potential repository of federal
judicial power. In that case, Gleeson CJ discussed the principle in Kable.
That decision was distinguished for these reasons:

“15. The decision in Kable established the principle that, since the
Constitution established an integrated Australian court system, and contemplates the exercise of federal jurisdiction by State Supreme Courts, State legislation which purports to confer upon such a court a
function which substantially impairs its institutional integrity, and
which is therefore incompatible with its role as a repository of
federal jurisdiction, is invalid.
16. The New South Wales legislation in question in that case

provided for the preventive detention of only one person, Mr Kable. appearance of institutional impartiality of the Supreme Court was seriously damaged by a statute which drew it into what was, in substance, a political exercise.
As was pointed out by Dawson J, the final form of the legislation had
a number of curious features, because of its parliamentary history. It
was originally framed as a law of general application, but an
amendment confined its application to the appellant. The object of
the statute in its final form was said to be to protect the community
by providing for the preventive detention of Gregory Wayne Kable.
Toohey J said that the extraordinary character of the legislation and
of the functions it required the Supreme Court to perform was
highlighted by the operation of the statute upon one named person
only. In that respect, he said, the statute was virtually unique. Senior
counsel for the appellant in the case argued that the legislation was
not a carefully calculated legislative response to a general social
problem; it was legislation ad hominem. That argument was accepted.
17. The minor premise of the successful argument in Kable was

specific to the legislation there in question. It is the major premise -
the general principle - that is to be applied in the present case.”

The distinction between Kable’s case and Fardon’s case is that the High
Court considered the legislation, the subject of the appeal in Fardon’s case,
permitted a proper exercise of judicial power.

[74] In Fardon v Attorney-General for the State of Queensland (supra),
Gleeson CJ referred in paragraph [19] to the discretion posited in the
Supreme Court and stated:
“… There is nothing to suggest that the Supreme Court is to act as a
mere instrument of government policy. The outcome of each case is
to be determined on its merits.”

and at paragraph [20]:
“It might be thought that, by conferring the powers in question on the
Supreme Court of Queensland, the Queensland Parliament was
attempting to ensure that the powers would be exercised
independently, impartially, and judicially. Unless it can be said that
there is something inherent in the making of an order for preventive,
as distinct from punitive, detention that compromises the
institutional integrity of a court, then it is hard to see the foundation
for the appellant's argument. …”

In this matter, Mr Grant QC argued very persuasively that there was still a
discretion posited in the Court because the Court still had to make a finding
as to whether the aggravated circumstance existed to enliven the Director of
Public Prosecutions’ application for a non parole period of 25 years.
I accept that in theory this is correct. However, in this particular case, the
reality is that Mr Bakewell was previously convicted of a sexual offence
associated with the offence of murder. There is no realistic possibility that
a judge could make a finding other than that a circumstance of aggravation
has been established. To demonstrate this I have set out the history of the
matter as follows:
On 10 May 1989, Jonathan Peter Bakewell entered a plea of guilty in the
Northern Territory Supreme Court to three charges, being offences
committed by him on 23 February 1988. These were:

(1) a charge of aggravated unlawful entry of a dwelling house with intent
to commit a crime, namely, unlawful assault of Anne Maree Culleton
and thereby have carnal knowledge of her.

(2) a charge of aggravated sexual assault with intent to have carnal
knowledge and thereby had carnal knowledge of Anne Maree
Culleton.
(3) a charge of stealing $120 in cash the property of Anne Maree
Culleton.

Mr Bakewell entered a plea of not guilty to a charge that he had murdered
Anne Maree Culleton.
This last charge then proceeded for hearing before Kearney J and a jury of
twelve persons. At the conclusion of the trial on 17 May 1989, the jury
returned a verdict of guilty of the charge of murder.
On 26 May 1989, after hearing submissions on sentence, Kearney J
proceeded to sentence Mr Bakewell. Kearney J imposed the following
sentences:

Count 1: aggravated unlawful entry of a dwelling house – 4 years
imprisonment.

Count 2: aggravated sexual assault which Kearney J described as rape -
10 years imprisonment.
Count 3: murder - life imprisonment.
Count 4: stealing - 1 year imprisonment.
All sentences were deemed to have commenced on 27 February 1988.

With respect to Count 2, the offence of aggravated sexual assault which
Kearney J referred to as rape, Kearney J made the following findings
(tp 468):
“Having broken into her home, you went straight to the main
bedroom. You found that she had woken up. She got up from her
bed. She screamed when you attacked her. You struggled with her
and you put your hand over her mouth to stifle her screams and you
dragged her to the second bedroom where you put her down on one
of the single beds. You pulled her underpants off and you dropped
your own trousers.
To stop her screaming you had your hand over her mouth, but as she continued to resist you by wriggling and slipping out from under you, you moved your hand to her throat and you squeezed her windpipe, telling her to shut up. You let go her windpipe but she started screaming again, so you reapplied the pressure to her windpipe, with your hand, until she was gasping. This went on 3 or 4 times as she continued to scream when you released the pressure.
Meanwhile, you were trying to have sexual intercourse with her but found, in fact, that your penis was in her bottom. You withdrew it. She continued to wriggle and scream. You then tore off the corner of
the sheet she was lying on and you tied it around her throat with a
double knot. Your intention in doing that, I find, for the purpose of
sentencing you, was not to kill her or to do her grievous harm but to
stop her screaming so that you could safely continue with your act of
forcible rape.
This ligature in fact stopped her screaming; it also effectively stopped her resistance to you because it meant that she could no longer breathe very well. She had to take long slow breaths in order to breathe. Her energies were directed mainly to trying to breathe and not to resist you. You saw her breathing in this fashion. You had sexual intercourse with her as she lay there on the bed in that condition.
When you had ejaculated into her, you got up from the bed leaving
her there in the condition I’ve just described, with the ligature tied
around her neck. …..”
In sentencing Jonathan Bakewell, Kearney J then made the following
remarks (p 473):
“The next count I deal with is the one you might commonly call rape.
I’ve described how you effected the forcible rape of this young
woman, Anne Maree Culleton, in her own home in the early hours of that occasion. You proceeded to satisfy it on this young woman who you treated as a mere sex object. You carried out your attack, it seems to me, with a single minded determination and a pitiless savagery and, without the slightest trace of any concern for the risk to the life of your victim, in which your efforts to quieten her were placing her, you proceeded to fulfil your purposes.
Nevertheless, I exclude from sentencing you for this offence the aggravating circumstances consisting of the violent means by which you in fact subdued her resistance; that is, applying pressure to her windpipe and tying a ligature around her neck. I exclude that because I consider that those violent means in fact constitute the
essence of the murder charge. They’re properly taken into account
when sentencing you for murder and, to take them into account when
sentencing you for this offence, would in fact be to double count
them against you. So I set them aside.
But setting aside those violent means, the fact remains that you carried out a forcible rape on a young woman in her own home at
night. That’s a most serious crime and also must be visited by a
condign punishment so that you and the other young men of like
mind to yourself will know what punishment to expect, and may be
deterred from committing such offences.”

There has never been any challenge to those findings with respect to the
conviction and sentence for the sexual offence.
On 11 October 2007, the Director of Public Prosecutions made an
application under s 19 of the Sentencing (Crime of Murder) and Parole
Reform Act 2003 (NT) (“the Act”).
The Director was seeking an order that the Court revoke Mr Bakewell’s non
parole period of 20 years and fix a longer non parole period of 25 years.
The sentencing judge on this application, delivered judgment on 16 October

2007. The sentencing judge referred on the application to the findings of
Kearney J with respect to each of the offences and stated in the course of his
concluding remarks:
[39] … I find beyond reasonable doubt that the act or omission that

caused Ms Culleton’s death was part of a course of conduct by the
prisoner that included conduct before the victim’s death that would

have constituted a sexual offence against the victim.
….
[42] But for s 19(3) of the Act I would have determined that a term

Mr Bakewell must actually serve in prison. Having considered all of
the objective and subjective factors referred to above and given what

of 20 years was the minimum term that justice required that punishment, denunciation and general and specific deterrence I would have determined that the relative seriousness of the crime of murder committed by Mr Bakewell was not such as to require a longer non-parole period than 20 years. Nor is the level of
Mr Bakewell’s culpability such as to require the court not to fix a
non-parole period. Mr Bakewell did not intend to kill Ms Culleton
nor did he intend to cause her grievous harm. He attempted to revive
her and he has shown remorse for his crimes.”

His Honour considered that pursuant to s 19(3) of the Act he was bound to
revoke the parole period of 20 years and impose a non parole period of
25 years.
This matter went before the Court of Criminal Appeal. The basis for the
appeal was that the sentencing judge had erred in holding that subsection
19(3) of the Act operated in the manner that excluded the existence of
discretion in the Court to dismiss the application brought by the Director of
Public Prosecutions.
The appeal was essentially argued on the basis of statutory construction.
The findings of the original sentencing judge with respect to the sexual offence were not the subject of any challenge. Nor was there any challenge
to the conclusion by the judge who dealt with the application under s 19 of
the Act that a sexual offence had been committed.
There has never been any challenge to the fact that the sexual offence
committed by Mr Bakewell is an aggravating circumstance as set out in
s 19(3)(b).
The Court of Criminal Appeal proceeded on the basis that there was an
aggravating circumstance, namely a sexual offence, that enlivened the
provisions of the legislation enabling the Director of Public Prosecutions to
apply for a non parole period of 25 years. The reasons for allowing the
appeal from the decision of the sentencing judge and dismissing the
Director’s application to fix a non parole period of 25 years, was because
the Court of Appeal found it had a discretion with respect to the matters to
which the transitional provisions applied. The Court then found that the
facts and circumstances relating to Mr Bakewell justified the exercise of the
discretion in his favour.
Following the decision of the Court of Criminal Appeal in No. CA 17 of
2007 delivered 7 March 2008, Parliament passed an amendment to s 19 of
the Sentencing (Crime of Murder) and Parole Reform Act 2003. This
amended legislation is set out in full in paragraph 11 of these reasons for
judgment.
The application by the Director of Public Prosecutions based on the
amended legislation is to fix a non parole period of 25 years.
It seems to me to be artificial in the extreme to say that a judge could now
entertain an argument that there were no aggravating circumstances as
defined in s 19(3)(b).
Counsel for Mr Bakewell does not concede that Mr Bakewell would make
such a challenge.
I consider it would be farcical to accept there was anything further for a
Court to do other than to rubber stamp the decision of the executive that the
non parole period for Mr Bakewell should be increased to 25 years.
In the case before this Court, s 19(9) has only one purpose which is to
increase the respondent’s penalty for penal or punitive reasons without any
new findings as to guilt or criminality.
With respect to s 19(9) of the Sentencing (Crime of Murder) and Parole
Reform Act 2003, I agree with the submission made by counsel for
Mr Bakewell, that this section of the legislation has the following effect:

“86. Unlike Fardon, the Northern Territory Act:

86.1 Is not in every respect a general law because parts of it
apply solely to the respondent and the main thrust of the

legislation ‘targets’ the respondent;

86.2 Requires the Supreme Court to act in a manner which is
inconsistent with its judicial character and its judicial
processes;
86.3 Calls upon the Court to make an order otherwise than as
a result of the exercise of judicial power;

86.4

Confers on this Court functions which are incompatible with the proper discharge of judicial responsibilities or with the exercise of judicial power.
86.5 Removes any discretion concerning whether an order
should be made, and if so, the type of order.
86.6 Ousts any effective right of appeal, and at the appeal
stage the Court is again not involved in any contest.
This gives an ‘appearance’ only of judicial power;
86.7 Requires that the Supreme Court act as an instrument of
government policy;

86.8

Demonstrates that the outcome of each case is not to be determined on its merits, but in a manner predetermined by the executive;
86.9 Requires a single judge of the Supreme Court to act in a
manner inconsistent with a decision of the Court of
Criminal Appeal on the merits of the case and on facts
which have not changed.”

The legislation, specifically s 19(9), compels a Judge of this Court to order
the respondent to serve not less than 25 years before being eligible for
parole even though, the Court of Criminal Appeal has already determined on
the merits that an appropriate and proper non parole period is 20 years and
that the period fixed by s 18 should not be increased.
I have come to the conclusion that s 19(9) goes beyond the permitted
legislative power of the Parliament of the Territory in so far as it imposes on
this Court a duty to exercise a power inconsistent with the constitutional
functions of a Court. I agree with Counsel for Mr Bakewell that it does this
by compelling the Court:

98.1 To ignore the fundamental principles of double jeopardy;
98.2 To make an order not as a result of the application of
traditional judicial method by the application of the facts as
found to the law as it exists, but to adopt a process inimical to
the essence of the judicial process;
98.3 To make an order which contradicts a previous order of the
same Court on the merits and therefore eroding the confidence
in the Court as an institution;
98.4 To act as merely an instrument of executive will;
98.5 To single out an individual for special treatment;
98.6 To impose a retrospective increase in penalty.

[100] I have concluded that subs 19(3), (6), (7) and (8) are different to the
amended subs 19(9) and (10).
[101] The other amendments referred to above do allow for a discretion albeit a
limited discretion, whether to dismiss the application if the prescribed
circumstances of aggravation are not established. If any of the prescribed
circumstances of aggravation are established in an application under s 19,
the Court must exercise the powers provided for in s 19(7)(c). There is a
further discretion as provided in s 19(8). The exercise of this discretion is
in accordance with the rules of evidence. The exercise of discretion may be
subject to the appeal process. The application can be considered on its
merits, the onus of proof is upon the Director of Prosecutions, the discretion
is to be exercised by reference to certain criteria and hearings are conducted
in public and in accordance with ordinary judicial process. The legislation
is not aimed at one individual who has previously had their case considered

by a Court of Criminal Appeal of the Supreme Court. The latter situation
undermines the integrity of the Supreme Court and makes a mockery of the
administration of criminal justice. The former does not and in that respect
differs from the amended subs 19(9) and (10).
[102] I would answer the questions as follows:

(1) Subsection 19(9) is invalid because:

(a) it infringes the constitutional principles enunciated in Kable v
The Director of Public Prosecutions (NSW) (1996) 189 CLR
51; and

(b) it further constitutes an unwarranted interference with the
judicial power of the Supreme Court.

The other amendments in Act No. 8 of 2008 namely s 19(3) and (7)
are not invalid.

(2) No.
(3) No.
(4) No.
(5) No.
Riley J:
[103] The Questions of Law for the consideration of the Full Court and the agreed
statement of facts in support of those questions are set out in paragraphs [2]
and [3] of the judgment of the Chief Justice.
The parole status of Mr Bakewell
[104] The status of the respondent, Jonathan Peter Bakewell, regarding parole has
fluctuated with time. On 26 May 1989, when he was sentenced for the
offence of murder, it was to life imprisonment with no prospect of parole.
Following the commencement of the Sentencing (Crime of Murder) and
Parole Reform Act 2003 (the Reform Act) in February 2004, and by
operation of s 18 of the Act, his sentence was deemed to include a standard
non-parole period of 20 years. On 16 October 2007, on the application of
the Director of Public Prosecutions pursuant to s 19 of the Reform Act, a
judge of the Supreme Court revoked the 20 year non-parole period and
ordered that he serve a non-parole period of 25 years. On 7 March 2008, in
Bakewell v The Queen[19], the Court of Criminal Appeal set aside the orders
made in the Supreme Court and dismissed the application of the Director.
The effect of so doing was to restore the standard non-parole period of
20 years.
[105] In the course of serving his sentence Mr Bakewell was transferred to the
prison system in South Australia. On 13 May 2008 he appeared before the
Parole Board of that State and the Board determined to make a
recommendation to the Governor in Executive Council that he be released on
parole for a period of 10 years.
[106] The Sentencing (Crime of Murder) and Parole Reform Amendment Act 2008

(NT) (the amending Act) was then passed with effect from 15 May 2008.
The intention of the amending Act, inter alia, was to provide for the
restoring of a non-parole period applicable to Mr Bakewell of at least
25 years. In accordance with the terms of the amending Act, the Director of
Public Prosecutions has now made an application to the Supreme Court for
an order that the Court fix a non-parole period of 25 years in relation to
Mr Bakewell.
[107] In the absence of the amending provision Mr Bakewell had been eligible to
apply for parole in February 2008 and had done so with initial success. If
the amending provision be effective, the Supreme Court will be likely to be
required to fix a non-parole period of at least 25 years and Mr Bakewell will
not be eligible to apply for parole for another five years beyond February
2008.
[108] Upon being advised of the passage of the amending legislation in the
Northern Territory, the South Australian Parole Board determined to defer
its decision pending confirmation of the effect of the amended Northern
Territory legislation on the application.
[109] As is accepted by the parties, the amending Act was a direct legislative
response to the decision of the Northern Territory Court of Criminal Appeal
in Bakewell v The Queen. In that case the Court ruled that the then existing
legislative regime allowed for a continuing judicial discretion to refuse the
application for an order imposing a non-parole period of at least 25 years.
In the exercise of that discretion, and noting the remarkable efforts at rehabilitation made by Mr Bakewell, the Court dismissed the application of
the Director with the consequence that the standard non-parole period of
20 years applied to Mr Bakewell.
[110] The amending Act addressed issues raised by the Court in Bakewell v The
Queen. It removed any discretion vested in the Director of Public
Prosecutions and required the Director to make a fresh application if he was
of the opinion that one or more of the prescribed circumstances of
aggravation "can be established". It then provided that the Supreme Court
had no power to dismiss the application of the Director in the event that a
prescribed circumstance of aggravation was established. The effect of the
amendments was to remove the judicial discretion which the Court had
recognized in Bakewell v The Queen in relation to the earlier form of the
legislation.
Subsection 19(9) of the amending Act
[111] In my opinion the primary concern in relation to the amending Act is with
subsection 19(9) of the Act read with subsection 19(10). The subsections
are in the following terms:

(9) If, before the commencement of this subsection, an

application under this section had been dismissed in a case in which
a prescribed circumstance of aggravation was, or could have been,
established, a further application may be made under this section
within 6 months after that commencement.

(10) The further application may be made either by the

Director of Public Prosecutions or by the Attorney-General and, if made by the Attorney-General, references in this Division to the Director of Public Prosecutions will, in relation to that application, be read as references to the Attorney-General.

[112] It is not in dispute, and there can be no doubt, that these provisions are
intended to apply to Mr Bakewell and no other person. He is the only
person in relation to whom an application under s 19 had been dismissed in
the circumstances provided for in the subsections. An application in
relation to Mr Bakewell had been dismissed and a prescribed circumstance
of aggravation had been established.
[113] The intention of the legislation was made clear in the Second Reading
Speech of the Attorney-General when he said:
I turn now to the retrospective component contained in the bill. As a
result of the Supreme Court’s recent decision, one transitional life
prisoner who committed the offence of murder with an aggravating
circumstance has received a minimum non-parole period of 20 years
imprisonment. All other transitional life prisoners who have been
found to have committed murders with circumstances of aggravation
have all received sentences of at least 25 years imprisonment or
higher. One has been declined a parole period. Until this most
recent case, the court has always interpreted the act as precluding it
from having any discretion to impose less than the 25 year minimum
term for murders where aggravating circumstances were present. If
government does not act, those prisoners who have been given a
25 year minimum term may justifiably feel a sense of grievance that
they were not given the same consideration as in the recent case of
Jonathon Bakewell. However, those other prisoners were dealt with
in the manner which was always intended by parliament and
Mr Bakewell was not. This is why government must act swiftly.
Mr Bakewell has not been considered for parole yet, but this bill
provides specific powers for a further application to be made for the
DPP or myself to apply a longer parole period.
The prompt response of government means that Mr Bakewell will not get his hopes up at the possibility of release or even to be
temporarily released only to return to prison upon this legislation’s
commencement. To this end, I have written to the South Australian
Corrective Services minister, the Honourable Carmen Zolo,
informing her of the Northern Territory’s actions and requesting that
this be conveyed to the South Australian Parole Board for its
information. The presence of circumstances of aggravation in the
murder committed by Mr Bakewell means that it was always this
parliament’s intention that he should serve a non-parole period of
25 years, just like all the other transitional life prisoners who have
been bought before the court so far.

[114] At the same time the Attorney-General issued a press release confirming that
the decision of the Court of Criminal Appeal "had prompted the
government's move". In the course of the debate the Attorney-General
advised Parliament that Mr Bakewell "has been a model prisoner and he has
rehabilitated himself".
[115] Considering the subsections in isolation they may be regarded as ad
hominem legislation. To adopt the expression used by McHugh J in Fardon
v Attorney General for the State of Queensland[20], subsection 19(9) read with
subsection 19(10) is legislation which, "although dressed up as a Supreme
Court legal proceeding", was enacted for the purpose of ensuring that
Mr Bakewell did not become eligible to apply for parole after 20 years of
imprisonment and that he only became eligible to apply after 25 years of
imprisonment. If effective it will extend the period during which
Mr Bakewell must remain in prison by at least five years.
The institutional integrity of the Court
[116] The submission made on behalf of Mr Bakewell is that the amending

legislation is "incongruous with the Supreme Court performing its judicial
function consistently with Chapter III of the Constitution". It was said that
the amending legislation shrouds an executive decision with apparent
judicial respectability and that the Constitution does not permit the
Executive impermissibly interfering with the judicial power and the judicial
process. It was submitted that the amending provisions, and in particular
subsections 19(9) and 19(10), are ultra vires the Parliament of the Northern
Territory.
[117] It was submitted that the essence of the amendment is to remove any general
discretion of the Supreme Court in determining an appropriate non-parole
period for Mr Bakewell. The amending legislation gives the appearance that
there is judicial work to do when in substance, upon proper analysis, this is
not so. In fact, so it was submitted, the amending legislation directs the
Court to act in a particular way upon a set of facts already agitated and
determined by the Court in earlier proceedings. The guilt of Mr Bakewell of
murder and of the sexual offence which constituted the circumstance of
aggravation was determined in the proceedings of May 1989. The issue of
the existence of an aggravating circumstance was resolved at that time and,
necessarily, confirmed by the ruling of the Supreme Court on 16 October
2007. The existence of the aggravating circumstance has never been
challenged. The Court of Criminal Appeal finalised the sentence of
Mr Bakewell by reference to the law as it existed at the time of its decision
on 7 March 2008.
[118] The submission on behalf of Mr Bakewell is that the amending Act requires,
without further judicial input save to pronounce the result, that the non-
parole period of Mr Bakewell will be extended by a period of five years.
[119] To similar effect it was further argued that the present proceedings relating

to Mr Bakewell are not of the nature of legal proceedings. They do not
involve the resolution of a dispute between contesting parties as to their
respective legal rights and obligations. The time at which Mr Bakewell was
to be put on trial has long passed and he has been convicted and sentenced
according to the law as it applied at the time. The existence of an
aggravating circumstance as contemplated by the Reform Act has been
considered and finally determined. The proceedings which have now been
commenced under the amending Act are directed towards altering the terms
of Mr Bakewell’s sentence in a way pre-determined by the Parliament
without the involvement of any judicial process or the exercise of any
discretion by the Court.
[120] In Kable v Director of Public Prosecutions (NSW)[21] the High Court
established the principle that, since the Constitution provided for an
integrated Australian court system, and contemplates the exercise of Federal
jurisdiction by State Supreme Courts, State legislation which purports to
confer upon such a court a function which substantially impairs its

institutional integrity, and which is therefore incompatible with its role as a
repository of Federal jurisdiction, is invalid[22]. The observations made in
Kable have equal application to Territory Supreme Courts and to Territory
legislation. It is clear that the Supreme Court of the Northern Territory may
exercise the judicial power of the Commonwealth and that the Supreme
Court must be, and appear to be, an independent and impartial tribunal [23].
[121] In Kable McHugh J referred to the legislative scheme there employed as
making the Supreme Court:
... the instrument of a legislative plan, initiated by the executive
government, to imprison the appellant by a process that is far
removed from the judicial process that is ordinarily invoked when a
court is asked to imprison a person.[24]

It was argued on behalf of Mr Bakewell that the impact of the amending
legislation in the present case is to similar effect. It was submitted that the
amending Act imposes on the Supreme Court a function which is
inconsistent with its role as a repository of Federal judicial power pursuant
to Chapter III of the Constitution because it compels the Court to impose a
period of punitive (as opposed to preventive) detention unrelated to any
finding of additional criminality and without involving itself in any further
judicial process.
[122] In Baker v The Queen[25] the High Court was called upon to consider the
application of section 13A of the Sentencing Act 1989 (NSW) which enabled
a person serving an existing life sentence to apply to the Supreme Court for
the determination of the minimum term of imprisonment that the person
must serve, and provide for a non-parole period. It was contended on behalf
of Mr Baker, who was said to be excluded from the scheme because he was
the subject of a "non-release recommendation", that section 13A purported
to vest functions in the Supreme Court that were incompatible with the
exercise of the judicial power of the Commonwealth and hence it was
invalid. In the course of his judgment, Gleeson CJ noted that legislative and
administrative changes to systems of parole and remissions usually affect
people serving existing sentences. There have been many such changes in
recent years. The retrospective operation of any such change does not make
the provision invalid. The Chief Justice pointed out that "retrospectivity is
a slippery concept"[26]. In a joint judgment McHugh, Gummow, Hayne and
Heydon JJ, dealing with the issue of retrospectivity, distinguished between,
on the one hand, a statute which provided that, as at a past date, the law
shall be taken to have been that which it was not and, on the other, the
creation by a statute of further particular rights or liabilities with respect to
past matters or transactions. The provisions in that case, and similarly in
the legislation in the present matter, are of the latter kind.
[123] In Baker v The Queen their Honours went on to conclude that there is
nothing repugnant to the notion of judicial power in taking past matters or
transactions as a legislative criterion for the operation of a subsequent
regime such as that provided for the Supreme Court of New South Wales by
section 13A of the legislation then under consideration. That is also what
has happened in the present case. The amending Act does not have the
effect of rendering Mr Bakewell liable to a greater punishment than that to
which he was liable when he committed the crime. He remains sentenced to
imprisonment for life. It does not make past conduct a criminal offence.
However it does take past matters as a legislative basis for the operation of
the scheme to allow the granting of non-parole periods for persons sentenced
to imprisonment for life following a conviction for murder.
[124] Following Liyanage v The Queen[27] the fact that legislation can be described
as ad hominem and ex post facto does not necessarily mean that there has
been usurpation or infringement of the judicial power. There must be more.
In Liyanage it was said (at 290):
Each case must be decided in the light of its own facts and circumstances, including the true purpose of the legislation, the situation to which it was directed, the existence (where several enactments are impugned) of a common design, and the extent to which the legislation affects, by way of direction or restriction, the discretion or judgment of the judiciary in specific proceedings.

[125] In Nicholas v The Queen[28] Gaudron J adopted what had been said in
Liyanage and added:
If legislation which is specific rather than general is such that, nevertheless, it neither infringes the requirements of equal justice nor prevents the independent determination of the matter in issue, it is not, in my view, invalid.

[126] Similarly, in Leeth v The Commonwealth[29] Mason CJ and Dawson and
McHugh JJ said:
Of course, legislation may amount to a usurpation of judicial power, particularly in a criminal case, if it pre-judges an issue with respect to a particular individual and requires a court to exercise its function
accordingly. It is upon this principle that bills of attainder may
offend against the separation of judicial power. But a law of general
application which seeks in some respect to govern the exercise of a
jurisdiction which it confers does not trespass upon the judicial
function.

[127] In Polyukhovich v The Commonwealth[30] Mason CJ observed that:

Indeed, there is powerful authority in this Court which supports the proposition that the application to the facts of a retrospective law which operates on past conduct so as to create rights and liabilities is an instance of the exercise of judicial power.

And later:
[i]f the law, though retrospective in operation, leaves it to the courts to determine whether the person charged has engaged in the conduct complained of and whether that conduct is an infringement of the
rule prescribed, there is no interference with the exercise of judicial
power.

[128] As was submitted on behalf of the applicant the principle in Kable will have
application only in "quite exceptional" circumstances. Reference to some of
the cases that have considered the application of the principle support that
submission. In Wynbyne v Marshall[31] mandatory sentencing was held not to
infringe the principle because it did not direct the court to reach a finding of
guilt; rather, guilt was proved in the usual way by admissible evidence led
by the prosecution. In Baker v The Queen it was held by the High Court that
legislation in New South Wales, which excluded prisoners the subject of a
"non-release recommendation" when sentenced from provisions
subsequently permitting a person serving an existing life sentence to apply
to the Supreme Court of New South Wales for a determination of a minimum
term of imprisonment and a non-parole period, did not offend the principle.
In Fardon the High Court held that legislation permitting the Queensland
Attorney-General to apply to the Supreme Court for an order that a prisoner
serving the last six months of a sentence for a serious sexual offence be
detained in custody for an indefinite term or released on conditions did not
offend the principle.
[129] In the present case, under the terms of the amending Act, it remains for the
Supreme Court to determine afresh whether the conduct of the individual
falls within the terms of the subsection. There is no issue estoppel. A circumstance of aggravation must be established and it is only in those
circumstances that the Court is then obliged to exercise its power to fix a
non-parole period of at least 25 years. In the process the Court exercises
judicial power by determining the existence of the circumstance of
aggravation and thus the status of the individual concerned. In the hearing
of the application the onus of proof rests upon the Director. The rules of
evidence apply and the decision whether to make an order is guided by
reference to specified criteria. There is a right of appeal. Any hearing is to
be conducted in public and in accordance with the ordinary judicial process.
The outcome of the case is to be determined on its merits.
[130] Further, the amending Act did not "target" Mr Bakewell or single him out
for special treatment. The Reform Act passed in 2004 confirmed the
mandatory sentence of imprisonment for life for anyone convicted of the
crime of murder. It then, for the first time in the Northern Territory,
provided the sentencing court with the power to fix a non-parole period.
That non-parole period could be the "standard non-parole period of
20 years" or, where a circumstance of aggravation was found to exist, "a
non-parole period of 25 years". The sentencing court was also given power
to fix a longer non-parole period or to refuse to fix a non-parole period
where appropriate.
[131] The Reform Act included transitional provisions to ensure that the benefits
of the Reform Act were available to a prisoner who, at the commencement

of the Act, was serving a sentence of imprisonment for life, for the crime of
murder. Mr Bakewell is one such prisoner. The history of the application
of the provisions permitting the setting of a non-parole period in their
application to Mr Bakewell has been set out above.
[132] The intention of the amending Act, as seen in its historical context, was to
ensure that Mr Bakewell was treated in the same way as those who had
come, or would come, within the general class of offenders who were
sentenced to imprisonment for life and in relation to whom a defined
circumstance of aggravation existed. It seeks to provide equal justice. The
legislation does not prejudge the issue with respect to Mr Bakewell and does
not require the Court to exercise its function according to any such pre-
judgment. There is nothing repugnant in taking a circumstance of
aggravation as defined, the existence of which is to be determined by the
Court, and using that as a legislative criterion for the imposition of a
minimum non-parole period.
The previous order of the Court
[133] On behalf of Mr Bakewell it was further submitted that a question in this
case was whether it was permissible for Parliament to compel the Supreme
Court of the Northern Territory to increase the non-parole period of
Mr Bakewell to a period of imprisonment greater than the standard 20 years
after the Supreme Court and the Northern Territory Court of Criminal
Appeal had already judicially determined that the respondent should not be

subject to a non-parole period exceeding 20 years. The effect, so it was
submitted, was to require the Court to make an order which contradicts the
previous order of the same Court on the merits and therefore erodes the
confidence in the Court as an institution. It serves to "nullify or negate" the
judgment of the Court of Criminal Appeal made on 7 March 2008.
[134] In the circumstances of Mr Bakewell, the amending Act requires a fresh
application to be brought in relation to a matter regarding which the
Supreme Court has made a determination under the legislation as it was
previously configured. Parliament can, whether by express words or
necessary intendment, enact legislation which retrospectively affects
pending actions including in cases where a citizen has had the benefit of a
court order[32]. As the applicant points out, the Reform Act allowed an
application to be brought for the fixing of a non-parole period in relation to
the sentence previously handed down in 1989 by the Supreme Court. The
amending Act may be a legislative response to the law as declared by the
Court but that is not necessarily an improper interference with judicial
process[33].
[135] In my view the legislation is valid.
Stay for abuse of process
[136] The principal argument presented on behalf of Mr Bakewell focused upon

the validity of subsection 19(9) and subsection 19(10) of the Act. Other
arguments were presented on his behalf and it is possible to deal with those
shortly.
[137] It was submitted on behalf of Mr Bakewell that the proceedings instituted by
the applicant constituted an abuse of the process of the Court and
accordingly the Court should stay the proceedings permanently. It was
acknowledged that the power to stay will be exercised only "in most
exceptional circumstances"[34]. The basis of the submission was that, for a
combination of reasons, exceptional circumstances exist in this case
warranting an exercise by the Court of its discretion to stay the proceedings
permanently. Reference was made to the history of the proceedings and the
expectation of Mr Bakewell that, following the decision of the Court of
Criminal Appeal, he had a "final and certain result". Further, it was
submitted that he faced double jeopardy as a result of the Court entertaining
"the second application with its certain result of an increase in the non -
parole period to 25 years". Finally it was said that the retrospective nature
of the amending Act compounded the "oppression visited upon the
respondent by being put in jeopardy twice".
[138] This is not a case of double jeopardy. Application of the principle precludes
a person being punished twice for what is substantially the same act[35]. In
the circumstances of these proceedings Mr Bakewell is not being exposed to

double punishment. Mr Bakewell was imprisoned for life in 1989. That
situation remains unchanged. The legislative scheme is designed to alleviate
the sentence by permitting Mr Bakewell and others to obtain a non-parole
period. The amending Act involves an adjustment to that scheme following
the decision of the Court of Criminal Appeal in Bakewell v The Queen. Any
retrospective operation of the amending Act is a valid exercise of the
legislative power and does not undermine the institutional integrity of the
Court.
[139] This Court has an inherent right to stay criminal proceedings which amount
to an abuse of process. The categories of abuse of process are not closed[36]
and the concept of an abuse of process "is not a precise one"[37]. The Court
will protect its ability to function as a court of law by ensuring its processes
are used fairly by State and citizen alike and the court will not permit its
processes to be used for oppression or injustice[38].
[140] There is no basis for a stay of proceedings in the circumstances of this case.
The procedures adopted by the applicant are authorised by the legislative
regime. There is no suggestion of any improper use by the applicant of the
procedures of the Court. There is no suggestion of any improper purpose on
the part of the applicant in commencing or pursuing the proceedings. The
applicant is proceeding in accordance with the requirements of the validly
enacted legislative regime. The invitation to the Court to grant a stay of

proceedings is an invitation to subvert a valid exercise of legislative power
with the effect that the intention of Parliament will be frustrated. As was
observed by Spigelman CJ in R v Elliott; R v Blessington[39] a court "should
not exercise a discretion in such a way as to undermine the purpose and
object of valid legislation with the effect, indeed the purpose, that the
intention of Parliament will be frustrated."
Conclusions
[141] I would answer the Questions of Law reserved for the consideration of the
Court as follows:

1. No

2. No

3. No

4. Yes

5. This question should be answered following a hearing before a judge of the

Supreme Court.

-------------------------------

[1] (1996) 189 CLR 51.
[2] The application for special leave to appeal was dismissed on 17 October 2008.
[3] As explained later in these reasons, the 2008 amendment removed the unfettered discretion.

[4] Bakewell v The Queen [2008] NTCCA 3.

[5] Para [16] citing R v Leach (2004) 14 NTLR 44 at 58 [26].
[6] North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146, [28].
[7] (2007) 21 NTLR 39.

[8] Baker v The Queen (2004) 223 CLR 513 per Gleeson CJ at 519 [5].

[9] Forge v Australian Securities and Investments Commission (2006) 228 CLR 45 per Gummow, Hayne

and Crennan JJ at 75 [61]
[10] Forge at 76 [63] citing Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at 617 [101].
[11] Forge at 76 [63].

[12] Forge at 77 [66]. Citation omitted.

[13] (2007) 33 WAR 245.

[14] Burnett v Director of Public Prosecutions (2007) 21 NTLR 39 at 69 [51].
[15] Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 133.
[16] Kable at 134.

[17] (1998) 193 CLR 173 at 197 [37].

[18] (2004) 223 CLR 513
[19] [2008] NTCCA 3.
[20] (2004) 223 CLR 575.
[21] (1996) 189 CLR 51.

[22] Baker v The Queen (2004) 223 CLR 513 per Gleeson CJ at 519 and Fardon v Attorney-General

(Qld) (2004) 223 CLR 575 at [15] and see [35], [100 – 105], [141 – 142], [198] and [213].

[23] North Australian Aboriginal Legal Aid Service Inc v Bradley and Another (2004) 218 CLR 146 at

163.
[24] (1996) 189 CLR 51 at 122.
[25] (2004) 223 CLR 513.
[26] (2004) 223 CLR 513 at 520 .
[27] [1967] AC 259 at 289.
[28] (1998) 193 CLR 173 at 212 .

[29] (1991) 174 CLR 455 at 469 0 470 .

[30] (1991) 172 CLR 501 at 533 and 536.
[31] (1997) 7 NTLR 97 at 111-112.

[32] Attorney General v World Best Holdings Ltd (2005) 63 NSWLR 557 at 570 [49] .

[33] McArthur River Mining Pty Ltd v Lansen and Others (2007) 21 NTLR 6.
[34] Jago v The District Court of New South Wales and Others (1989) 168 CLR 23 at 31.
[35] Pearce v The Queen (1998) 194 CLR 610 at (34) - (40).
[36] Jago v The District Court of New South Wales and Others (1989) 168 CLR 23 at 26.

[37] Ridgeway v The Queen (1995) 184 CLR 19 at 60.

[38] Williams and Others v Spautz (1991) 174 CLR 509 at 520.
[39] (2006) 68 NSWLR 1 at [75].

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Kable v Director of Public Prosecutions (NSW) [1996] HCA 24

PARTIES:	BAKEWELL, Jonathan Peter
v
THE QUEEN
TITLE OF COURT:	FULL COURT OF THE SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:	FULL COURT OF THE
SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:	96 of 2008 (20821205)
DELIVERED:	11 DECEMBER 2008
HEARING DATES:	29 and 30 OCTOBER 2008
JUDGMENT OF:	MARTIN (BR) CJ, THOMAS & RILEY JJ
CATCHWORDS:

Plaintiff:	M Abbott QC and I Read
Defendant:	M Grant QC and S Brownhill

Plaintiff:	NT Legal Aid Commission
Defendant:	Office of the Director of Public Prosecutions
Judgment category classification:	A
Judgment ID Number:	Mar0811
Number of pages:	74
IN THE FULL COURT OF THE NORTHERN TERRITORY OF AUSTRALIA AT DARWIN

(a)	not earlier than 12 months before the first 20 years of the prisoner's sentence is due to expire; or
(b)	if, at the commencement of this Act, that period has

(a)	the victim's occupation was police officer, emergency services worker, correctional services officer, judicial officer, health professional, teacher, community worker
or other occupation involving the performance of a public function or the provision of a community service and the act or omission that caused the victim's death occurred while the victim was carrying out the duties of his or her occupation or for a reason otherwise connected with his or her occupation;
(b)	the act or omission that caused the victim's death was part of a course of conduct by the prisoner that included conduct, either before or after the victim's death, that would have constituted a sexual offence against the victim;
(c)	the victim was under 18 years of age at the time of the act or omission that caused the victim's death;
(d)	at the time the prisoner was convicted of the offence, the prisoner had one or more previous convictions for the crime of murder or manslaughter.

	Section 19(1) provided that on an application by the Director, the
Supreme Court “may” revoke the non-parole period fixed by s 18. The
conferral of that discretion was not expressed to be subject to any other
provision of the Act. Nor was the power expressed as a power that
“may” be exercised upon satisfaction that particular cri teria had been
established.
	The scheme created by the transitional provisions for the revocation of
non-parole periods fixed by s 18 was not an entirely mandatory scheme.
The legislature had conferred an unfettered discretion upon the Director
to determine whether to make an application for the revocation of a
period fixed by s 18. If the Court did not retain a discretion to refuse
such an application, in a practical sense the discretion whether to revoke
a period fixed by s 18 would rest with a statutory office holder.
	The context of the transitional provisions was a penal statute in which
those provisions had application only after a prisoner had served at least
20 years imprisonment. It would not be surprising if the legislature had
in mind that rehabilitation may have occurred in that 20 year period to
the extent that the interests of the community would be best served by
declining to revoke the 20 year period fixed by s 18.

(9)	If, before the commencement of this subsection, an application under this section had been dismissed in a case in which a prescribed circumstance of aggravation was, or could have been, established, a further application may be made under this section within 6 months after that commencement.
(10)	The further application may be made either by the Director of Public Prosecutions or by the Attorney-General and, if made by the Attorney-General, references in this Division to the Director of Public Prosecutions will, in relation to that
application, be read as references to the Attorney-General.”

	In any other case, the Director “may” make an application for revocation.
	Upon an application by the Director, the court must determine whether
any of the prescribed circumstances of aggravation are “established”.
The discretion with respect to that decision is unfettered.
	If the court determines that a prescribed circumstance of aggravation is
established, the court’s power to dismiss the Director’s application is
“excluded”.
	If the court determines that a prescribed circumstance of aggravation is
established, the court “must” exercise its power to revoke the 20 year
non-parole period fixed by s 18.
	If the court determines that a prescribed circumstance of aggravation is
established, the court “must” fix a non-parole period of 25 years in
accordance with s 19(3) or fix a longer non-parole period in accordance
with s 19(4) or refuse to fix a non-parole period in accordance with
s 19(5).
	If the court determines that a prescribed circumstance of aggravation has
not been established, the court may dismiss the application or exercise its
power to revoke the non-parole period fixed by s 18 and either fix a
longer non-parole period or refuse to fix a non-parole period.

	“… The principle for which [Kable] stands as authority is that, since the
Constitution established an integrated Australian court system, and
contemplates the exercise of federal jurisdiction by State Supreme
Courts, State legislation which purports to confer upon such a court a
function which substantially impairs its insti tutional integrity, and
which is therefore incompatible with its role as a repository of federal
jurisdiction, is invalid”.[8]
	Federal jurisdiction may only be invested in a “‘court’ as that word is to
be understood in the Constitution …”.[9]
	“Because Ch III requires that there be a body fitting the description ‘the
Supreme Court of a State’, it is beyond the legislative power of a State
so to alter the constitution or character of its Supreme Court that it
ceases to meet the constitutional description. One operation of that
limitation on State legislative power was identified in Kable. The
legislation under consideration in Kable was found to be repugnant to,
or incompatible with, ‘that institutional integrity of the State courts
which bespeaks their constitutionally mandated position in the
Australian legal system’”.[10]
	The principle is “one which hinges upon maintenance of the defining
characteristics of a ‘court’, or in cases concerning a Supreme Court, the
defining characteristics of a State Supreme Court. It is to those
characteristics that the reference to ‘institutional integrity’ alludes.
That is, if the institutional integrity of a court is distorted, it is because
the body no longer exhibits in some relevant respect those defining
characteristics which mark a court apart from other decision-making
bodies”.[11]
	“[W]hen reference is made to the institutional ‘integrity’ of a court, the
allusion is to what The Oxford English Dictionary describes as ‘[t]he
condition of not being marred or violated; unimpaired or uncorrupted
condition; original perfect state; soundness’”.[12]

	‘… A Supreme Court will lack institutional integrity if it is, or
is perceived to be, not institutionally independent of the legislative and executive government in the exercise of its
Federal jurisdiction … There are suggestions that a court will
not have the required degree of independence if it acts as a
mere instrument of government policy …’ (at [89]).
	‘… Institutional impartiality, and the appearance of it, must not
be compromised …’ (at [90]).
	‘… The appearance of institutional independence and
impartiality is no less important to the institutional integrity of the court than the fact of its institutional independence and impartiality. That, in turn, must be so because its absence will result in a loss of public confidence in the court as an institution, to the detriment of that institution and of the
community generally’ (at [94]).
	It is at least a material consideration to determine whether the
power conferred by the legislature is ‘antithetical to the
judicial process’ (at [92]).
	There are a number of ‘relevant incidents’ which are ordinarily part of the judicial process such as ‘the fact of a public
hearing, application of rules of evidence, the existence of a discretion where appropriate; provisions with respect to the onus and standard of proof; an obligation to afford natural
justice; an obligation to make proper disclosure; an obligation (and ability) to give reasons; and the existence of the right of
appeal’ (at [92]).”

(6)	The Director of Public Prosecutions:
(a)
must make an application under this section in the case of the prescribed circumstances of aggravation can be established; and
(b)	may make an application under this section in the case of any other prisoner to whom this Division applies.
(7)	If any of the prescribed circumstances of aggravation is

(2)	a charge of aggravated sexual assault with intent to have carnal
knowledge and thereby had carnal knowledge of Anne Maree
Culleton.
(3)	a charge of stealing $120 in cash the property of Anne Maree
Culleton.

Count 2:	aggravated sexual assault which Kearney J described as rape -
10 years imprisonment.
Count 3:	murder - life imprisonment.
Count 4:	stealing - 1 year imprisonment.

86.2	Requires the Supreme Court to act in a manner which is inconsistent with its judicial character and its judicial processes;
86.3	Calls upon the Court to make an order otherwise than as a result of the exercise of judicial power;
86.4	Confers on this Court functions which are incompatible with the proper discharge of judicial responsibilities or with the exercise of judicial power.
86.5	Removes any discretion concerning whether an order should be made, and if so, the type of order.
86.6	Ousts any effective right of appeal, and at the appeal stage the Court is again not involved in any contest.
This gives an ‘appearance’ only of judicial power;
86.7	Requires that the Supreme Court act as an instrument of government policy;
86.8	Demonstrates that the outcome of each case is not to be determined on its merits, but in a manner predetermined by the executive;
86.9	Requires a single judge of the Supreme Court to act in a manner inconsistent with a decision of the Court of Criminal Appeal on the merits of the case and on facts
which have not changed.”

98.1	To ignore the fundamental principles of double jeopardy;
98.2	To make an order not as a result of the application of traditional judicial method by the application of the facts as found to the law as it exists, but to adopt a process inimical to the essence of the judicial process;
98.3	To make an order which contradicts a previous order of the same Court on the merits and therefore eroding the confidence in the Court as an institution;
98.4	To act as merely an instrument of executive will;
98.5	To single out an individual for special treatment;
98.6	To impose a retrospective increase in penalty.